THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

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Law  Library 
University  of  Washington 


HAEEIS' 


JUSTICE  OP  THE  PEACE  GUIDE 


FOB  THE 


STATE  OF  WASHINGTON 


BY 

ARTHUR  M.  HARRIS 

Of  the  Seattle  Bar 


PORTLAND,  OREGON 

GEO.  A.  BATESON  &  CO.,  INC. 

Law  Book  Publishers 

1912 


T 
H, 
1512 


COPYRIGHT,  1912 
BY 

GEO.  A.  BATESON  &  CO.,  INC. 


SAN  FRANCISCO 

THE  PILMEB  BROTHEES  ELECTROTYPE  COMPANT 
TYPOGRAPHERS  AND  STEREOTYPERS 


PEEFACE. 


The  aim  of  this  book  is  to  show  the  conduct  of  the  case  in 
a  justice  of  the  peace  court  from  the  filing  of  the  complaint 
to  the  execution  of  the  judgment  or  the  appeal  therefrom. 
It  is  not  a  treatise  or  thesis  on  the  origin  and  history  of 
justices  of  the  peace;  it  is  a  plain,  practical  guide  to  the 
laws  and  procedure  of  these  courts  of  limited  jurisdiction. 

The  author  has  endeavored  to  simplify  the  intricacies  of 
procedure  by  simple  explanatory  introductions  or  editorial 
matter  to  the  various  statutes. 

The  justice  is  cited  to  Remington  &  Ballinger's  Code  and 
include  the  amended  garnishment  statutes  of  the  Session  of 


The  form  is  given  with  the  statute,  and  can  be  found  in 
the  index. 


ARTHUR  M.  HARRIS. 


Seattle,  Washington,  1912. 

(iii) 


TABLE  OF  CONTENTS. 


CHAPTEE  I. 

THE  ACTION. 

8    1.  Jurisdiction  of  civil  actions. 

5    2.  Actions  arising  from  contract. 

S    3.  Actions  for  injuries  to  person  or  property, 

S    4.  Actions  on  bonds. 

S    5.  Actions  on  surety  bonds. 

S    6.  Actions  arising  from  fraud* 

i    7.  Judgment  on  confession. 

S    8.  Attachments,  etc. 

S    9.  All  other  actions. 

S  10.  General  powers. 

11.  Jurisdiction,  when  vested. 

12.  Territorial  extent  of  justice's  jurisdiction. 

13.  Where  justice's  office  shall  be  held. 

14.  Jurisdiction  specifically  prohibited. 

15.  Acting  without  jurisdiction. 

16.  Jurisdiction — How  lost. 

17.  Questioning  the  want  of  jurisdiction. 

18.  The  special  appearance. 

19.  Statute  of  limitations  (as  applicable  to  justice  procedure)* 


CHAPTER  II. 
THE  PARTIES  TO  THE  ACTION. 

I  20.  What  is  meant  by  "parties." 

S  21.  Who  may  be  parties  to  the  action. 

9  22.  Husband  and  wife. 

S  23.  When  husband  and  wife  must  join  in  the  action. 

S  24.  When  husband  and  wife  may  join  in  the  action. 


yi  TABLE  OF  CONTENTS. 

§  25.  Separate  and  antenuptial  debts. 

§  26.  When  wife  may  be  joined  on  husband's  promissory  note. 

§  27.  The  general  rule. 

§  28.  Liability  for  the  expenses  of  the  family. 

§  29.  To  secure  judgment  against  the  community  property. 

§  30.  Infants. 

§  31.  When  the  infant  is  defendant  he  likewise  appears  by  guardian. 

§  32.  Administrators,  etc. 

§  33.  Assignees  as  parties. 

§  34.  Partners  and  corporations  as  parties. 

§  35.  Persons  severally  liable  as  parties. 

§  36.  Eights  of   parties  to   intervene. 

§  37.  Defect  of  parties. 

§  38.  Correcting  mistake  in  name. 

§  39.  Striking  one  of  the  plaintiffs  out. 

§  40.  When  the  wrong  defendant  is  sued. 

$  41.  Bights  of  one  not  made  a  party. 


CHAPTER  III. 

THE  PLEADINGS. 
HOW  THE  PLAINTIFF  PEEPAEES  HIS  CASE  FOB  TBIAL. 

8  42.  The   complaint — What  is  meant  by  pleadings. 

§  43.  Contents  of  the  complaint. 

§  44.  Oral  pleadings. 

S  45.  Pleadings  for  money  only. 

§  46.  Pleadings  to  be  made  certain. 

§  47.  The  parts  of  a  complaint. 

§  48.  Title. 

§  49.  Parties. 

$  50.  The  statement  of  the  cause  of  action — Plain  language. 

§  51.  Be  certain. 

§  52.  Ambiguity. 

§  53.  Duplicity. 

§  54.  Eepugnancy. 

§  55.  Evidentiary  facts. 

§  56.  General  statements. 

§  57.  Neatness. 

§  58.  Joinder  of  causes  of  action. 

§  59.  The  prayer  for  relief. 

S  60.  Verification. 

1  61.  When  pleadings  take  place. 


TABLE  OF   CONTENTS.  TU 

OHAPTEK  IV. 
TAKING  THE  CAUSE  INTO  COURT. 

§  62.  The  notice. 

§  63.  The  service  of  complaint  and  notice. 

§  64.  Time  of  service. 

5  65.  By  whom  service  may  be  made — By  appointed  persons. 

§  66.  By  publication. 

S  67.  How  weekly  publication  is  made. 

§  68.  Sheriffs,  constables,  and  other  persons. 

1  69.  Manner  of  service. 

§  70.  Certified  copy. 

§  71.  Service  when  there  are  two  or  more  defendants. 

S  72.  The  return  of  process  and  proof  of  service — Penalty. 

S  73.  How  service  is  proved. 

§,  74.  Rules  adopted  by  Bang  County  justices. 

§  75.  Other  methods  of  commencing  actions. 

§  76.  Action  commenced  by   summons. 

S  77.  Action   commenced  by   complaint   and  notice. 

§  78.  The   defendant's   answer,  etc. 

§  79.  When  the  defendant  is  in  default. 

§  80.  The  dismissal  of  the  action. 

§  81.  The  defendant's  appearance. 

§  82.  The  special  appearance. 

§  83.  The  continuance. 

§  84.  Continuance  by  agreement  of  the  parties. 

§  85.  Amendments    generally. 

§  86.  The  answer  of  the  defendant. 

§  87.  The  denial. 

§  88.  Denial  of  knowledge  or  information. 

§  89.  Undenied   allegations  admittedly   true. 

§  90.  General  rules  governing  the  preceding  pleadings — Amendments. 

§  9L  Filing    amended    pleadings. 

§  92.  Variance   between  the   pleadings  and  the  proof. 

§  93.  Immaterial  variance. 

§  94.  Practice  in  case  of  variance. 

§  95.  Failure  to  prove. 

§  96.  Amendments  generally. 

§  97.  Setoffs. 

§  98.  Counterclaims. 

S  99.  Setoffs  generally. 

§  100.  Allowing  setoff. 

8  101.  The  plaintiff's  reply. 


V1U  TABLE  OF   CONTENTS. 

CHAPTER  V. 
THE  TRIAL. 

§  102.  The  venue  or  place  of  trial. 

§  103.  Venue  of  actions. 

§  104.  Change  of  venue. 

§  105.  Same    as   in   superior   court. 

§  106.  Only  one  change  allowed. 

§  107.  Venue  when  private  corporation  is  defendant. 

§  108.  Venue  in  other  cases. 

§  109.  Manner  of  proceeding  on  change  of  venue. 

§  110.  Change  of  venue  on  affidavit. 

§  111.  Cost  bond  of  nonresident  plaintiff. 

§  112.  The  demurrer. 

§  113.  Grounds  of  demurrer. 

S  114.  Bill  of  particulars. 

CHAPTER  VI. 
THE  JURY  TRIAL. 

§  115.  Those  exempt  from  jury  service. 

|  116.  Those  who  are  qualified  to  be  jurors. 

§  117.  Demanding  a  jury — Number — Fees. 

§  118.  Selecting  the  jury. 

§  119.  Summoning  the  jury. 

§  120.  Personal  service. 

S  121.  The  juror's  oath. 

§  122.  The  verdict. 

§  123.  When  the  jury  disagrees. 

§  124.  Juror  failing  to   answer  summons. 

S  125.  Challenging,  argument,  etc. 


CHAPTER  VII. 
THE  WITNESSES. 

5  126.  Who  may  be  witnesses. 

§  127.  Persons  not  qualified  to  be  witnesses. 

§  128.  Disqualifications  of  witnesses  by  reason  of  relationship,  etc. 

§  129.  Witnesses  within  twenty  miles. 

§  130.  Service. 


TABLE   OF   CONTENTS.  IX 

8  131.  Compelling  adverse  party  to  testify. 

§  132.  Effect  of  party  refusing  to  testify. 

§  133.  Party  examined  on  his  own  behalf. 

§  134.  Witness  failing  to  appear — Liability  for  damages. 

S  135.  Writ  of  attachment  for  witness. 

§  136.  Writ  to  be  served  same  as  warrant. 

§  137.  Depositions. 

§  138.  Time  of  taking  depositions. 

§  139.  Deposition  taken  out  of  state. 

§  140.  Depositions  to  be  taken  on  notice. 

§  141.  Use   of   depositions. 

§  142.  Service  of  notice  by  publication. 

§  143.  Deposition  to  be  written  and  certified. 

§  144.  Sealing  and  transmitting  deposition. 

§  145.  Use  on  trial. 


CHAPTER  VIII. 
EXAMINATION  OP  WITNESSES. 

§  146.  The  direct  examination. 

§  147.  Cross-examination. 

§  148.  Redirect  examination. 

§  149.  Leading  questions. 

§  150.  Impeaching  a  witness. 

§  151.  Eefreshing  the  witness*  memory. 

S  152.  Objections  to  questions. 


CHAPTER  IX. 

THE  JUDGMENT. 

§  153.  Dismissal. 

S  154.  Judgment  by  default. 

§  155.  The  costs. 

§  156.  When  defendant  tenders  judgment  and  cost*. 

§  157.  The  judgment  lien. 

§  158.  The  transcript  of  judgment. 

§  159.  What  the  transcript  contains. 

§  160.  Entering  the  transcript. 

S  161.  Property  in  another  county. 


X  TABLE  OF  CONTENTS. 

CHAPTER  X. 
THE  APPEAL. 

§  162.  The  amount  in  controversy. 

S  163.  How  the  appeal  is  taken. 

§  164.  Appeal  stays  proceedings. 

§  165.  Execution  recalled  by  appeal. 

$  166.  The  transcript. 

S  167.  The  same  pleadings  as  in  lower  court. 

§  168.  Superior  court  may  compel  transcript. 

§  169.  Defective  bond — How  cured. 

§  170.  Judgment  also  against  sureties. 

§  171.  Costa  on  appeal. 


CHAPTER  XL 
EXECUTIONS  UPON  JUDGMENTS. 

{  172.  Limit  of  five  years. 

§  173.  Execution — How  directed. 

5  174.  Indorsement  of  writ. 

§  175.  Notice  of  sale  of  goods. 

§  176.  Return  of  sale. 

§  177.  Officer  not  to  purchase  at  sale. 

§  178.  Claim  of  third  person. 

§  179.  Alias  executions  (renewal). 

§  180.  Stay  of  execution. 

§  181.  Bond  for  stay. 

§  182.  Execution  revoked. 

§  183.  Execution  against  sureties. 

§  184.  Substitution  of  surety. 

S  185.  Offsetting  mutual  judgments. 

S  186.  Execution  for  the  balance  of  mutual  judgments. 

§  187.  Offset  of  judgment  rendered  by  another  justice. 

§  188.  Execution  issued  by  justice's  successor. 

§  189.  Arrest  of  defendant  on  return  of  execution. 

§  190.  Execution  for  costs. 

§  191.  Claimant  may  have  any  remedy. 

§  192.  Examination  of  garnishees. 

§  193.  Statutory  exemptions. 

S  194.  Pension  money  exemption. 

§  195.  Insurance  money  exempt. 

|  196.  Life  insurance  money  exempt. 


TABLE  OF  CONTENTS. 

f  197.  Cemeteiy  lots  exempt. 
{  198.  Who  is  a  householder, 
i  199.  Procedure  on  claiming  exemptions. 


CHAPTER  XII. 
ARREST  IN  CIVIL  ACTIONS. 

i  200.  Warrant  of  arrest  (civil). 

9  201.  Affidavit  for  warrant. 

S  202.  Bond  for  arrest  in  civil  action. 

§  203.  Arrest  of  defendant. 

9  204.  Plaintiff  notified  of  arrest. 

§  205.  Detention  of  defendant. 

9  206.  Discharge  of  defendant. 

9  207.  Guardian  for  infant  plaintiff. 

S  208.  Guardian  for  infant  defendant. 


CHAPTER  XIII. 

ATTACHMENTS. 

9  209.  Attachment,  time  of. 

9  210.  Order  in  which  writs  are  executed. 

9  211.  Sale  of  attached  property — Perishable. 

9  212.  Discharge  of  improper  writ. 

9  213.  Eeturn  of  writ. 

9  214.  Moneys  received  on  attachment. 

9  215.  Garnishment  of  sheriff  or  constable. 

9  216.  Attaching  funds  in  hands  of  the  court. 

9  217.  Officer  to  inventory  goods. 

9  218.  Eeturn  of  unsatisfied  writ. 

9  219.  Deficiency  and  surplus  execution. 

9  220.  Execution  of  judgment  on  attached  property. 

9  221.  Release  on  judgment  for  defendant. 

9  222.  Examination  of  defendant  as  to  his  property. 

9  223.  Pursuing  property  to  another  county. 

9  224.  Motion  for  discharging  attachment. 

9  225.  Hearing  on  motion  to  discharge  attachment. 

9  226.  Counter-bond  to  discharge  attachment. 

9  227.  Judgment  on  counter-bond. 

9  228.  Suit  on  attachment  bond. 

9  229.  Construction  of  amendment  statutes. 


xii  TABLE  OF  CONTENTS. 

§  230.  Affidavit  for  writ  of  attachment. 

§  231.  Bond  on  attachment. 

§  232.  Additional  security. 

§  233.  The  writ  of  attachment. 

§  234.  Execution  of  writ. 


CHAPTEE  XIV. 

REPLEVIN. 

§  235.  Form  of  affidavit. 

§  236.  Justice's  order  for  delivery. 

§  237.  Execution. 

§  238.  Defendant's  counter-bond. 

§  239.  Sureties — Their  justification. 

§  240.  The  defendant's  sureties. 

§  241.  Claim  of  third  party  for  property. 

§  242.  Execution — Bight  to  break  into  buildings. 

§  243.  Execution — Officer  shall  keep  and  deliver  chattel. 

§  244.  Execution — The  officer's  return. 


CHAPTER  XV. 
GARNISHMENT. 

§  245.  Who  may  be  garnished. 

§  246.  Affidavit  for  writ  of  garnishment. 

§  247.  Writ  of.  « 

§  248.  Writ  to  be  indorsed. 

§  249.  Service. 

§  250.  Service  binding  on  garaishee. 

§  251.  Service  upon  bank. 

§  252.  Answer  of  garnishee. 

§  253.  Answer  when  names  are  uncertain. 

§  254.  Answer — Pleading — Defense. 

§  255.  Answer  of  garnishee  controverted. 

§  256.  Bond  of  defendant. 

§  257.  Garnishee  defendant  discharged  when. 

§  258.  Garnishee  to  surrender  property. 

§  259.  Judgment  on  default  of  garnishee  defendant* 

§  260.  Judgment  against  garnishee  on  the  answer. 

§  261.  Execution  of  judgment  against  garnishee. 

§  262.  Refusal  of  garnishee  to  deliver  is  contempt. 

f  263.  Costs  allowed  garnishee  on  controverted  answer. 


TABLE  OF   CONTENTS.  Xlll 


I  264.     Garnishment  of  corporation. 
§  265.     Conduct  of  sale. 
§  266.     Sale  conveys  title. 


CHAPTER  XVI. 

NE  EXEAT. 

S  267.  General  authority. 

§  268.  Bond. 

§  269.  Venue. 

§  270.  Defendant  discharged  on  recognizance. 

§  271.  Writ  for  any  surety. 

§  272.  Proceedings  before  justice. 

§  273.  Bemedy  by  writ  of  habeas  corpus. 


CRIMINAL  JURISDICTION  OF  JUSTICE 
OP  THE  PEACE. 

CHAPTER  XVIL 
PROCEDURE. 

S  274.  Warrant  issued  on  complaint. 

§  275.  Jurisdiction  of  criminal  offenses. 

§  276.  Bail  with  or  without  examination, 

§  277.  Hearing  and  commitment. 

§  278.  Offense  in  presence  of  justice. 

§  279.  Plea  of  guilty  to  any  offense. 

§  280.  Necessity  of  hearing. 

§  281.  Trial  by  jury  and  magistrate. 

S  282.  Punishment — Adequate  and  inadequate. 

§  283.  Injured  party  as  witness. 

S  284.  Continuance. 

S  285.  Recognizance  of  witnesses. 

§  288.  Sureties  required  of  witnesses,  when. 

§  287.  Recognizance  for  witnesses  not  sui  juris. 

S  288.  Judgment  includes  fine  and  costs. 

S  289.  Bond  for  stay  of  execution. 

§  290.  Bight  of  appeal  to  superior  court. 

9  291.  Recognizance  for  witnesses  on  appeal 


XIV  TABLE   OF   CONTENTS. 

§  292.  Defendant  not  to  advance  fees  of  appeal. 

§  293.  Examination  upon  complaint. 

§  294.  Trial  when  justice  has  jurisdiction  of  offense. 

§  295.  Bail  when  justice  has  not  jurisdiction. 

§  296.  Recognizance  of  witnesses. 

§  297.  Deposition  to  be  written  and  signed. 

§  298.  Record  to  be  transcribed  to  superior  court. 

§  299.  Suit  against  witness  on  the  bond. 

§  300.  Costs  to  be  forwarded. 

§  301.  Complainant  pays  costs  for  malicious  complaint. 

i  302.  Compound  of  misdemeanors. 


CHAPTER  XVIII. 
CRIMES. 

§  303.  Accessory  to  a  crime. 

§  304.  Acquittal,  foreign. 

§  305.  Acquittal  or  conviction  in  other  county. 

§  306.  Adultery. 

§  307.  Amusement,  dangerous. 

§  308.  Animals — Vicious  animals  at  large. 

§  309.  Animals — Diseased. 

§  310.  Animals — Disposal  of  carcasses. 

§  311.  Animals,  injury  to. 

§  312.  Arson. 

§  313.  Automobiles — Speed  of. 

i  314.  Beggar  is  vagrant. 

§  315.  Brands  on  animals,  etc. 

§  316.  Brand,  imitating  lawful. 

§  317.  Burglary. 

§  318.  Child,  abandonment  of. 

§  319.  Concert  halls,  minors  in. 

§  320.  Children,  employment  of. 

§  321.  Conveyance — Offenses  in  public. 

§  322.  Defendant. 

§  323.  Desecration  of  flag. 

§  324.  Felony. 

§  325.  Felony — Punishment,  when  not  fixed  by  statutfi. 

§  326.  Firearms. 

§  327.  Forgery. 

§  328.  Gambling. 

§  329.  Highways. 

i  330.  Intoxicating  liquors. 

§  331.  Manslaughter. 

8  332.  Misdemeanor  defined. 


TABLE  OF   CONTENTS. 

§  333.  Murder. 

§  334.  Murder  in  the  second  degree. 

§  335.  Orchard,  injury  to. 

§  336.  Public  peace,  crimes  against. 

§  337.  Sabbath-breaking. 

§  338.  Keligious  meeting,  disturbing. 

§  339.  Vagrancy. 

CHAPTER  XIX. 
CONSERVING  THE  PEACE. 

§  340.  The  peace  bond. 

§  341.  Complaint  for  peace  bond. 

§  342.  Warrant  on  complaint. 

§  343.  Trial  and  recognizance. 

§  344.  Imprisonment  in  default  of  bond. 

§  345.  Discharge  on  giving  bond. 

§  346.  Appeal  to  superior  court. 

§  347.  Bond  effective  on  failure  to  prosecute  appeal. 

5  348.  Judgment  of  appellate  court. 

§  349.  Peace  recognizance  to  be  certified  to  superior  court. 

§  350.  Complainant  to  pay  costs  of  prosecution,  when. 

§  351.  Costs  (when  defendant  may  be  liable). 

§  352.  Summary  recognizance  for  offense  in  presence  of  the  court. 

§  353.  Penalty  on  bond  may  be  remitted. 

§  354.  Hearing  and  transcript  to  superior  court. 

§  355.  Eights  of  surety  on  peace  bond. 

§  356.  Either  singular  or  plural  number. 

CHAPTER  XX. 

CONTEMPT  PROCEEDINGS. 

§  357.  Persons  guilty  of  contempt. 

§  358.  Punishment. 

§  359.  Form  of  warrant. 

§  360.  Form  of  judgment. 

§  361.  Contempt  in  presence  of  the  court. 

§  362.  Cause  to  be  heard. 

i  363.  Commitment  of  defendant. 

CHAPTER  XXI. 

JUSTICE  OF  THE  PEACE  AS  POLICE  JUDGE. 

i  364.     Establishment  of  police  court. 

§  365.    Jurisdiction  and  duties  of  police  judge. 


XVI  TABLE  OF  CONTENTS, 

§  366.  General  powers. 

§  367.  Police  powers  of  justices. 

§  368.  In  cities  of  the  third  class. 

§  369.  In  cities  of  the  fourth  class. 

§  370.  In  cities  of  the  first  class. 


CHAPTER  XXII. 
JUSTICE  OF  THE  PEACE  AS  NOTARY. 

§  371.     Justice  of  the  peace  as  notary. 
i  372.    General  form  of  acknowledgment. 


CHAPTER  XXIII. 
JUSTICE  OF  THE  PEACE  AS  CORONER. 

CHAPTER  XXIV. 

JUSTICE  OF  THE  PEACE  AS  DEPUTY  STATE  FIRE 

MARSHAL. 

CHAPTER  XXV. 
JUSTICES'  OFFICE  EQUIPMENT,  FEES,  ETC. 

S  373.  Clerk  and  assistance. 

§  374.  The  justice's  docket. 

§  375.  Fees  of  justice  of  the  peace. 

§  376.  Fees  of  salaried  justices. 

5  377.  Other  fees  not  to  be  collected. 

§  378.  Fees  to  be  paid  in  advance. 

§  379.  Salary  of  justice  pro  tern. 

§  380.  How  justices'  salaries  are  paid. 

§  381.  Fee-book  and  accounts. 

§  382.  Salary  in  city  of  more  than  five  thousand. 

§  383.  Salary  in  cities  of  over  thirty-five  thousand. 

§  384.  Moneys  to  be  paid  to  county  treasurer. 


TABLE   OF   CONTENTS.  XV11 


CHAPTER  XXVI. 

HOW  JUSTICES  OF  THE  PEACE  ARE  ELECTED  AND 

QUALIFY. 

§  385.  Election  precincts. 

§  386.  Number  in  incorporated  cities. 

§  387.  In  cities  of  more  than  five  thousand  inhabitants. 

§  388.  Number  in  first  class  cities — Must  be  a  lawyer. 

§  389.  In  cities  of  over  thirty-fire  thousand  inhabitants. 

§  390.  The  number  of  justices. 

§  391.  Who  are  eligible. 

§  392.  Term  of  the  office. 

S  393.  Certificate  and  oath, 

§  394.  Jurisdiction. 

§  395.  New  precinct. 

f  396.  Liability  on  bond. 

§  397.  Successor  in  office. 

§  398.  Penalty  of  failure. 


CHAPTER  XXVII. 
SOLEMNIZING  MARRIAGE. 

§  399.  Authority  to  solemnize. 

§  400.  License  by  county  auditor. 

§  401.  Affidavit  for  marriage  license,  etc. 

f  402.  Marriage  forbidden  in  certain  cases. 

§  403.  Marriage  forbidden — Continued. 

5  404.  Penalty  for  violating  marriage  statute. 

§  405.  Authorized  officer  not  to  solemnize. 

§  406.  Form  of  ceremony. 

§  407.  The  marriage  certificate. 

§  408.  Form  of  certificate. 

§  409.  Certificate  to  be  recorded. 

§  410.  Penalty  for  failure  to  deliver  certificate. 

§  411.  Marriages,  when  valid. 

i  412.  Solemnization  by  unqualified  person. 

§  413.  Voidable  marriages. 


XVlii  TABLE  OP  CONTENTS. 

CHAPTER  XXVIII. 
TRUANT  CHILDREN  AND  COUNTY  PRISONERS. 

§  414.  Justice  of  the  peace  may  sentence  prisoners  to  work. 

§  415.  County  prisoners  to  be  worked. 

§  416.  Truant  children. 

§  417.  Concurrent  jurisdiction  over  truants. 

CHAPTER  XXIX. 
SWINE. 

§  418.  Swine  may  be  impounded. 

§  419.  Assessment  of  damages  by  appraisers. 

§  420.  Fees  of  the  justice. 

§  421.  Slaughtered  animals. 

§  422.  Justice  to  have  copy  of  record. 

CHAPTER  XXX. 

SEAGULLS. 
§  423.    Penalty. 

§  424.     Justice's  power  to  punish. 
S  425.    Actions  in  favor  of  towns. 

CHAPTER  XXXI. 
CONSTABLES. 

S  426.  His  duties  and  authority. 

§  427.  Eelative  to  unclaimed  property  or  lost  money  and  goods. 

§  428.  Constable's  sale  of  unclaimed  property. 

§  429.  Beturn  of  sale. 

§  430.  The  constable's  election. 

§  431.  In  cities  of  five  thousand  population. 

§  432.  The  constable's  salary. 

§  433.  The  constable's  oath. 

§  434.  The  constable's  bond. 

§  435.  Appointment  to  vacant  office. 

S  436.  Schedule  of  fees. 

{  437.  Incomplete  business  to  successor. 


TABLE  OF   CONTENTS.  XIX 


GENEEAL  STATUTES. 

CHAPTER  I. 
BILLS  OF  SALE. 

§  438.  Bill  of  sale  to  be  recorded  or  possession  taken. 

§  439.  Certain  contracts  to  be  in  writing. 

§  440.  Affidavit  of  vendor  for  stock  of  goods. 

9  441.  Sale  of  goods  void — When. 


CHAPTER  II. 

THE  LAW  OF  WILLS  AND  DESCENT  OF  PROPERTY. 

§  442.  There  must  be  two  witnesses. 

§  443.  When  witness  is  beneficiary. 

§  444.  Devise  of  land. 

§  445.  Signing  testator's  name  for  him. 

§  446.  When  will  is  revoked. 

§  447.  Construction. 

§  448.  Keal  property. 

§  449.  When  the  real  estate  does  not  descend  by  devise. 

§  450.  Surviving  spouse  and  child. 

§  451.  Surviving  spouse  and  parents. 

§  452.  Surviving  brothers  and  sisters. 

§  453.  Surviving  spouse  and  no  issue  nor  near  blood, 

9  454.  Next  of  kin. 

§  455.  Deceased  child's  estate  shared  by  survivors. 

§  456.  Issue  of  same  parent. 

§  457.  When  estate  goes  to  the  state. 

§  458.  The  inheritance  by  illegitimate  children. 

9  459.  How  personal  property  is  distributed. 


CHAPTER  III. 
COMMUNITY  PROPERTY. 

9  460.  The  husband's  separate  property. 

9  461.  The  wife's  separate  property. 

9  462.  What  is  community  property. 

9  463.  The  husband  to  manage  real  property. 


XX  TABLE   OF    CONTENTS. 

CHAPTER  IV. 
CONCERNING  DEEDS. 

§  464.  The  grantor. 

§  465.  The  grantee. 

§  466.  The  warranty  deed. 

§  467.  Consideration. 

§  468.  The  quitclaim  deed. 

§  469.  The  bargain  and  sale  deed. 

§  470.  The  form  of  acknowledgment. 

§  471.  Conveyances  by  and  between  husband  and  wife. 

§  472.  The  mortgage. 

§  473.  The  satisfaction  of  mortgages. 

S  474.  Penalty  for  failing  to  satisfy  mortgage. 

CHAPTER  V. 
CONCERNING  LEASES. 

§  475.  The  monthly  tenant. 

§  476.  Tenant  by  sufferance. 

§  477.  Tenancy  at  specified  time. 

S  478.  Year  to  year  tenancy. 


CHAPTER  VI. 

CHATTEL  MORTGAGES  OR  MORTGAGES  OF  PER- 
SONAL PROPERTY. 

§  479.  Personal  property  may  be  mortgaged. 

§  480.  Must  be  made  under  affidavit. 

§  481.  Mortgage  must  be  recorded. 

§  482.  A  mixed  mortgage  on  personal  and  real  propertj. 

§  483.  Unlawful  removal  of  mortgaged  property. 


TABLE   OF   CONTENTS.  XXI 

CHAPTER  VII. 
LABOR  AND  MATERIALMEN'S  LIEN. 

§  484.  Lien  for  improvements  on  real  property  when. 

§  485.  Form  of  claim,  filing,  etc. 

§  486.  What  the  claim  shall  state. 

§  487.  Form  of  claim. 

§  488.  Lien  right  is  assignable. 

§  489.  Action  on  lien  within  eight  months. 

§  490.  The  innkeeper's  lien. 

§  491.  Limitation  of  innkeeper's  responsibility. 

§  492.  The  agistor's  lien. 

S  493.  The  farm  laborer's  lien. 

§  494.  The  logger's  lien. 

§  495.  Lien  on  lumber  at  the  mill. 

9  496.  Lien  on  cut  timber. 

§  497.  Filing  claim  for  logger's  lien — Form. 

CHAPTER  VIII. 
PRIVATE  CORPORATIONS. 

§  498.  General  provision  for  forming. 

§  499.  Two  or  more  persons. 

§  500.  Written  articles. 

§  501.  File  one  of  such  articles. 

§  502.  Said  articles  shall  state. 

§  503.  This  limit  of  existence. 

§  504.  Amendments  may  be  made. 

9  505.  Form  of  corporation  acknowledgment. 

§  506.  Names  of  officers  to  be  filed. 

S  507.  Corporation  powers. 


CHAPTER  IX 
PARTNERSHIPS. 

§  508.  Two  or  more  persons  may  form  partnership. 

§  509.  Limited  partnership. 

§  510.  Filing  of  partnership  certificate. 

§  511.  Partnership  certificate  to  be  published. 

9  512.  As  parties  to  actions. 

9  513.  Dissolution  of  partnership. 


TABLE  OF   CONTENTS. 

CHAPTER  X. 
SALES  OF  UNCLAIMED  PROPERTY. 

§  514.  Notice  of  sale  of  unclaimed  property. 

§  515.  Affidarit  for  sale. 

8  516.  Order  of  sale. 

§  517.  How  sale  is  made. 

§  518.  The  constable's  return. 

§  519.  Proceeds  of  sale  disposed. 

§  520.  Sale  of  perishable  property. 

§  521.  Pees  for  justice  and  constable. 

S  522.  Finder  of  lost  property. 


CHAPTER  XL 
ABATEMENT  OF  NUISANCES. 

§  523.  Public  nuisance. 

8  524.  Any  person  may  abate. 

§  525.  Action  by  private  person. 

§  526.  Definition  of  nuisance. 

§  527.  Statutory  nuisances. 

§  528.  Resorts  declared  to  be  nuisances. 

§  529.  Order  of  abatement  and  warrant. 

§  530.  Bond  for  staying  warrant. 

S  531.  Execution  of  warrant. 


CHAPTER  XII. 
DOMESTIC  ANIMALS  AND  FISH  LAWS. 

§  532.  Damaged  party  may  retain  animals. 

§  533.  Notice  to  owner. 

§  534.  Notice  by  posting. 

§  535.  Action  for  damages. 

8  536.  Judgment  lien  on  animals. 

§  537.  Continuance  and  service  where  defendant  is  unknown. 

§  538.  Surplus  money  deposited  with  county  treasurer. 

8  539.  Justices  have  jurisdiction. 

8  540.  Jurisdiction  of  violations  of  fishing  laws. 


JUSTICE  OF  THE  PEACE  GUIDE. 


CIVIL  JURISDICTION  OF  JUSTICE  OF 
THE  PEACE. 

CHAPTER  I. 
THE  ACTION. 

S    1.  Jurisdiction  of  civil  actions. 

5    2.  Actions  arising  from  contract. 

5    3.  Actions  for  injuries  to  person  or  property. 

5    4.  Actions  on  bonds. 

§    5.  Actions  on  surety  bonds. 

§'6.  Actions  arising  from  fraud. 

S    7.  Judgment  on  confession. 

§    8.  Attachments,  etc. 

S    9.  All  other  actions. 

§  10.  General  powers. 

§  11.  Jurisdiction,  when  vested. 

S  12.  Territorial  extent  of  justice's  jurisdiction. 

§  13.  Where  justice's  office  shall  be  held. 

§  14.  Jurisdiction  specifically  prohibited. 

§  15.  Acting  without  jurisdiction. 

§  16.  Jurisdiction — How  lost. 

S  17.  Questioning  the  want  of  jurisdiction. 

S  IS.  The  special  appearance. 

S  19.  Statute-  of  limitations  (as  applicable  to  justice  procedure). 

An  action  is  defined  to  be  a  legal  prosecution  in  an  appro- 
priate court  by  a  party  complainant  against  a  party  defend- 
ant to  obtain  the  judgment  of  that  court  in  relation  to  some 
rights  claimed  to  be  secured  or  some  remedy  claimed  to  be 
given  by  law  to  the  party  complaining.  (Am.  &  Eng.  Ency.) 

The  most  important  duty  of  the  justice  of  the  peace,  as 
well  as  the  most  considerable  part  of  all  his  duties,  is  the 
adjudication  of  what  are  known  as  civil  suits;  disputes  aris- 
ing between  individuals  rather  than  between  society  and  the 
individual..  Both  the  civil  and  the  criminal  jurisdiction  of 
the  justice  of  the  peace  are  limited,  as  we  shall  see  later; 
1  (1) 


2  JUSTICE  OF  THE  PEACE  GUIDE. 

yet  the  interests  involved  in  a  civil  suit  are  large  enough  to 
require  a  careful  knowledge  of  the  civil  procedure  of  the 
justice  court. 

Concerning,  then,  the  matter  of  civil  suits,  let  us  inquire, 
first,  as  to  the  justice's 

§  1.    JURISDICTION  OF  CIVIL  ACTIONS. 

It  might  properly  be  explained  here  that  the  word  "juris- 
diction" means  the  power  to  hear  and  determine.  There 
are  various  other  definitions,  but  the  general  broad  mean- 
ing is  the  power  to  hear  and  determine  certain  civil  actions 
and  proceedings. 

§  2.    ACTIONS  ARISING  FROM  CONTRACT. 

Of  an  action  arising  on  contract  for  the  recovery  of 
money  only  in  which  the  sum  claimed  is  less  than  one 
hundred  dollars. 

§  3.  ACTIONS  FOR  INJURIES  TO  PERSON  OR  PROP- 
ERTY. 

Of  an  action  for  damages  for  injuries  to  the  person, 
or  for  taking  or  detaining  personal  property  or  for 
injuring  personal  property,  or  for  an  injury  to  real 
property  when  no  issue  raised  by  the  answer  involves 
the  plaintiif 's  title  to  or  possession  of  the  same,  when 
the  amount  of  damages  claimed  is  less  than  one  hundred 
dollars;  also  of  actions  to  recover  the  possession  of 
personal  property,  when  the  value  of  such  property, 
as  alleged  in  the  complaint,  is  less  than  one  hundred 
dollars; 

Of  an  action  for  a  penalty  less  than  one  hundred  dol- 
lars; 

§  4.    ACTIONS  ON  BONDS. 

Of  an  action  upon  a  bond  conditioned  for  the  payment 
of  money,  when  the  amount  claimed  is  less  than  one 
hundred  dollars,  though  the  penalty  of  the  bond  exceed 
that  sum,  the  judgment  to  be  given  for  the  sum  actually 
due,  not  exceeding  the  amount  claimed  in  the  com- 
plaint; 

§  5.    ACTIONS  ON  SURETY  BONDS. 

Of  an  action  on  an  undertaking  or  surety  bond  taken 
by  him  or  his  predecessor  in  office,  when  the  amount 
claimed  is  less  than  one  hundred  dollars; 


THE  ACTION.  3 

§  6.    ACTIONS  ARISING  FROM  FRAUD. 

Of  an  action  for  damages  for  fraud  in  the  safe,  pur- 
chase or  exchange  of  personal  property,  when  the  dam- 
ages claimed  are  less  than  one  hundred  dollars; 

§  7.    JUDGMENT  ON  CONFESSION. 

To  take  and  enter  judgment  on  confession  of  a  de- 
fendant when  the  amount  of  the  judgment  confessed  is 
less  than  one  hundred  dollars; 

§  8.    ATTACHMENTS,  ETC. 

To  issue  writs  of  attachment  upon  goods,  chattels, 
moneys  and  effects,  when  the  amount  is  less  than  one 
hundred  dollars; 

§  9.    ALL  OTHER  ACTIONS. 

Of  all  other  actions  and  proceedings  of  which  juris- 
diction is  specially  conferred  by  statute,  when  the 
amount  involved  is  less  than  one  hundred  dollars,  and 
the  title  to  or  right  of  possession  of  or  to  a  lien  upon 
real  property  is  not  involved.  [44.] 

§  10.     GENERAL  POWERS. 

The  justice  has  power  to  hear,  try  and  determine  all  of 
the  actions  set  forth  in  the  preceding  statute,  and  for  that 
purpose  the  law  has  vested  him  with  all  the  necessary  pow- 
ers which  are  possessed  by  courts  of  record  of  this  state, 
with  the  further  decree  that  all  laws  of  a  general  nature 
shall  apply  to  the  justice's  court  within  proper  limits. 

Every  justice  of  the  peace  elected  in  any  precinct  in 
this  state  is  hereby  authorized  to  hold  a  court  for  the 
trial  of  all  actions  in  the  next  section  enumerated,  to 
hear,  try  and  determine  the  same  according  to  law;  and 
for  that  purpose,  where  no  special  provision  is  otherwise 
made  by  law,  such  court  shall  be  vested  with  all  the 
necessary  powers  which  are  possessed  by  courts*  of 
record  in  this  state;  and  all  laws  of  a  general  nature 
shall  apply  to  such  justice's  court,  as  far  as  the  same 
may  be  applicable,  and  not  inconsistent  with  the  pro- 
visions of  this  chapter.  [43.] 

From  this  it  is  apparent  that  the  justice  should,  whenever 
possible,  have  a  general  knowledge  of  the  law.  This  also 
illustrates  the  fact  that  even  though  justice  procedure  is 


4  JUSTICE  OF  THE  PEACE  GUIDE. 

simple  and  the  amount  in  controversy  small,  nevertheless 
questions  involving  the  weightier  principles  of  law  are 
often  submitted  to  a  justice's  deliberations. 

In  cities  of  the  first  class  the  justice  must  be  an  at- 
torney at  law.  [6533.] 

§  11.    JURISDICTION,  WHEN  VESTED. 

In  a  dispute  between  two  individuals  the  court  has  no 
power  to  hear  and  determine  the  difference  until  certain 
steps  have  been  taken  by  one  or  both  of  the  disputants  to 
invoke  the  court's  power  and  authority.  One  of  the  dis- 
tinctions between  a  civil  action  and  a  criminal  action  is 
that  in  the  civil  action  the  matter  comes  voluntarily  into 
the  jurisdiction;  in  the  criminal  action  the  criminal  comes 
involuntarily  into  the  jurisdiction.  Another  difference  is 
that  of  time:  a  civil  dispute  between  two  persons  may  run 
like  an  open  sore  for  years,  nor  shall  the  civil  authority 
have  power  of  its  own  motion  to  interfere  and  apply  the 
healing  ointment  of  impartial  judgment  and  speedy  execu- 
tion, but  let  the  flesh  be  scratched  never  so  little  with 
criminal  intent,  and  immediately  the  law  begins  to  operate 
upon  the  aggressor,  as  a  surgeon  would  deplete  the  body 
of  a  diseased  member  which  threatens  the  health  of  other 
members. 

The  court  shall  be  deemed  to  have  obtained  possession 
of  the  case  from  the  time  the  complaint  or  claim  is 
filed,  after  completion  of  service,  whether  by  publica- 
tion or  otherwise,  and  shall  have  control  of  all  subse- 
quent proceedings.  [1769.] 

§  12.    TERRITORIAL  EXTENT  OF  JUSTICE'S  JURIS- 
DICTION. 

The  jurisdiction  of  justices  of  the  peace  in  all  civil 
actions,  except  as  provided  in  the  preceding  section, 
shall  be  coextensive  with  the  limits  of  the  county  in 
which  they  are  elected  or  appointed,  and  no  other  and 
greater,  but  every  justice  of  the  peace  shall  continue 
to  reside  and  perform  all  the  duties  of  his  office  in  the 
precinct  for  which  he  was  elected  or  appointed  during 
his  continuance  in  office.  [1757.] 


THE  ACTION.  5 

The  boundary  here  is  geographical,  and  confined  to  the 
county  limits  in  which  the  justice  is  elected  or  appointed. 
This  general  limitation  was  found  not  specific  enough  to 
prevent  hardship  being  maliciously  forced  on  a  defendant  of 
dragging  him  from  one  end  of  the  county  to  the  other.  This 
was  in  a  large  measure  prevented  by  the  following  enact- 
ment: 

All  civil  actions  commenced  in  a  justice  court  against 
a  defendant  or  defendants  residing  in  a  city  or  town 
of  more  than  three  thousand  inhabitants  shall  be 
brought  in  the  justice  court  of  the  precinct  in  said  city 
or  town  in  which  one  or  more  of  such  defendants  re- 
side. [1756.] 

§  13.    WHERE  JUSTICE'S  OFFICE  SHALL  BE  HELD. 

Every  justice  of  the  peace  shall  keep  his  office  in  the 
,  precinct  for  which  he  may  be  elected,  and  not  else- 
where, but  he  may  issue  process  in  any  place  in  his 
county.     [48.] 

The  justice  may  not  have  his  office  with  a  lawyer  other 
than  his  law  partner.  If  he  have  a  law  partner,  such  part- 
ner shall  not  be  permitted  to  appear  or  practice  as  an 
attorney  in  any  case  tried  before  such  justice  of  the  peace. 
[49.] 

§  14.    JURISDICTION     SPECIFICALLY    PROHIBITED. 

The  expression,  "jurisdiction  specifically  prohibited,"  is 
rather  an  unfortunate  and  illogical  one,  for  a  court  only  has 
jurisdiction  to  the  extent  that  jurisdiction  is  granted  it  by 
the  proper  authority.  When  the  court  passes  these  bound- 
aries, jurisdiction  automatically  ceases. 

The  term  "jurisdiction  prohibited"  is  used  in  the  codified 
statutes,  and  for  that  reason  is  introduced  here. 

1.  In  which  the  title  to  real  property  shall  come  in 
question. 

2.  Nor  to  an  action  for  the  foreclosure  of  a  mort- 
gage, or  enforcement  of  a  lien  on  real  estate. 

3.  Nor  to  an  action  for  false  imprisonment,  libel, 
slander,  malicious  prosecution,  criminal  conversation, 
or  seduction. 


6  JUSTICE  OF  THE  PEACE  GUIDE. 

4.  Nor  to  any  action  against  an  executor  or  admin- 
istrator as  such.  [45.] 

§  16.    ACTING  WITHOUT  JURISDICTION. 

If  the  justice  of  the  peace  shall  pass  beyond  the  bound- 
aries of  his  jurisdiction,  the  judgments  which  he  shall  ren- 
der are  void — not  merely  voidable,  but  void  absolutely. 
Nor  can  any  agreement  between  the  parties  to  an  action 
that  the  court  may  try  the  case  confer  a  jurisdiction  which 
the  court  has  not  by  law.  When  he  exceeds  his  jurisdic- 
tion, the  justice  becomes  a  wrongdoer  and  liable  to  the 
injured  party  for  damages. 

§  16.    JURISDICTION— HOW  LOST. 

When  it  appears  from  the  answer  of  the  defendant  that 
the  real  issue  of  the  case  involves  the  title  to  real  estate, 
the  court  will  lose  jurisdiction  of  the  case.  If  on  the  trial 
of  any  cause  it  appears  that  the  title  to  lands  is  in  question, 
the  justice  must  certify  the  cause  to  the  superior  court  of 
the  county. 

If  it  appear  on  the  trial  of  any  cause  before  a  justice 
of  the  peace,  from  the  evidence  of  either  party,  that  the 
title  to  lands  is  in  question,  which  title  shall  be  disputed 
by  the  other,  the  justice  shall  immediately  make  an 
entry  thereof  in  his  docket,  and  cease  all  further  pro- 
ceedings in  the  cause,  and  shall  certify  and  return  to 
the  superior  court  of  the  county,  a  transcript  of  all 
the  entries  made  in  his  docket  relating  to  the  cause,  to- 
gether with  all  the  process  and  other  papers  relating  to 
the  action,  in  the  same  manner,  and  within  the  same 
time,  as  upon  an  appeal;  and  thereupon  the  parties  shall 
file  their  pleadings,  and  the  superior  court  shall  proceed 
in  the  cause  to  final  judgment  and  execution,  in  the 
same  manner  as  if  the  action  had  been  originally  com- 
menced therein,  and  the  cost  shall  abide  the  event  of 
the  suit.  [1863.] 

§  17.  QUESTIONING  THE  WANT  OP  JURISDICTION. 
We  have  seen  that  the  matter  of  jurisdiction  is  a  most 
important  matter,  and  that  the  consequences  of  exceeding 
the  jurisdiction  are  to  make  void  the  whole  judgment.  If 
the  defendant  then  wishes  to  question  the  jurisdiction  of  the 


THE  ACTION.  7 

court  in  which  he  has  been  brought,  he  may  do  so  by  plead- 
ing to  the  jurisdiction,  or  by  a  plea  in  abatement.  When 
jurisdiction  is  wanting,  that  fact  often  appears  on  the  rec- 
ord, and  in  that  event  the  defendant  may  move  to  dismiss 
the  action  for  want  of  jurisdiction. 

§  18.    THE  SPECIAL  APPEARANCE. 

When  the  defect  is  the  want  of  the  proper  process  or 
want  of  proper  service,  the  pleader  must  be  careful  of  the 
form  in  which  he  makes  his  motion  to  dismiss  the  action, 
or  the  motion  itself  will  give  the  court  jurisdiction  of  the 
person.  In  such  cases,  the  defendant  will  say  that  he  ap- 
pears specially  and  for  the  purpose  of  making  the  motion 
upon  the  ground  of  the  want  of  jurisdiction,  and  for  that 
reason  only. 

§  19.    STATUTE  OP   LIMITATIONS  (AS  APPLICABLE 
TO  JUSTICE  PROCEDURE). 

Actions  can  only  be  commenced  within  the  periods 
herein  prescribed  after  the  cause  of  action  shall  have 
accrued,  except  when  in  special  cases  a  different  limita- 
tion is  prescribed  by  statute ;  but  the  objection  that  the 
action  was  not  commenced  within  the  time  limited  can 
only  be  taken  by  answer  or  demurrer.  [155.] 

Within  six  years, — 

An  action  upon  a  contract  in  writing,  or  liability  ex- 
press or  implied  arising  out  of  a  written  agreement. 
[157.] 

Within  three  years, — 

An  action  for  taking,  detaining,  or  injuring  personal 
property,  including  an  action  for  the  specific  recovery 
thereof,  or  for  any  other  injury  to  the  person  or  rights 
of  another  not  hereinafter  enumerated; 

An  action  upon  a  contract  or  liability,  express  or 
implied,  which  is  not  in  writing,  and  does  not  arise 
out  of  any  written  instrument; 

An  action  for  relief  upon  the  ground  of  fraud,  the 
cause  of  action  in  such  case  not  to  be  deemed  to  have 
accrued  until  the  discovery  by  the  aggrieved  party  of 
the  facts  constituting  the  fraud; 

An  action  upon  a  statute  for  penalty  or  forfeiture, 
where  an  action  is  given  to  the  party  aggrieved,  or  to 
such  party  and  the  state,  except  when  the  statute  im- 


JUSTICE  OF  THE  PEACE  GUIDE. 

posing  it  prescribed  a  different  penalty  [limitation]. 
[159.] 

Within  two  years, — 

An  action  for  libel,  slander,  assault,  assault  and  bat- 
tery, and  false  imprisonment. 

An  action  upon  a  statute  for  a  forfeiture  or  penalty 
to  the  state.  [160.] 

Other  relief: 

An  action  for  relief  not  hereinbefore  provided  for 
shall  be  commenced  within  two  years  after  the  cause  of 
action  shall  have  accrued.  [165.] 


THE  PAETIES   TO   THE  ACTION.  9 


CHAPTER  II. 
THE  PARTIES  TO  THE  ACTION. 

|  20.  What  is  meant  by  "parties." 

§  21.  Who  may  be  parties  to  the  action. 

|  22.  Husband  and  wife. 

§  23.  When  husband  and  wife  must  join  in  the  action. 

i  24.  When  husband  and  wife  may  join  in  the  action. 

§  25.  Separate  and  antenuptial  debts. 

§  26.  When  wife  may  be  joined  on  husband's  promissory  note. 

|  27.  The  general  rule. 

§  28.  Liability  for  the  expenses  of  the  family. 

§  29.  To  secure  judgment  against  the  community  property. 

§  30.  Infants. 

i  3*1.  When  the  infant  is  defendant  he  likewise  appears  by  guardian. 

§  32.  Administrators,  etc. 

i  33.  Assignees  as  parties. 

§  34.  Partners  and  corporations  as  parties. 

§  35.  Persons  severally  liable  as  parties. 

S  36.  Bights  of   parties   to   intervene. 

§  37.  Defect  of  parties. 

§  38.  Correcting  mistake  in  name. 

§  39.  Striking  one  of  the  plaintiffs  out. 

§  40.  When  the  wrong  defendant  is  sued. 

|  41.  Bights  of  one  not  made  a  party. 

The  first  thing  in  a  lawsuit  is  to  determine  who  the  parties 
who  are  really  interested  in  the  action  are  and  whether  or 
not  it  is  permitted  to  sue  them  or  otherwise  involve  them 
In  the  contemplated  action. 

§  20.    WHAT  IS  MEANT  BY  "PAETIES." 

The  first  thing  in  this  connection  is  to  decide  the  meaning 
of  the  word  "parties."  In  the  Encyclopedia  of  Pleading 
and  Practice  the  definition  of  the  term  "parties"  is  given 
concisely  as  follows : 

The  term  "parties"  to  an  action  is  used  to  designate 
the  person  or  persons  seeking  to  establish  a  right  and 
the  person  or  persons  upon  whom  it  is  sought  to  impose 
a  corresponding  duty  or  liability. 


10  JUSTICE  OF  THE  PEACE  GUIDE. 

The  term  may  mean  either  a  single  individual  or  a  class 
or  number  of  persons,  according  to  the  circumstances  sur- 
rounding the  particular  case. 

§  21.    WHO  MAY  BE  PARTIES  TO  THE  ACTION. 

Everyone,  as  we  have  seen  above,  who  seeks  to  establish 
a  right  or  upon  whom  it  is  sought  to  impose  some  corre- 
sponding duty  or  liability.  Not  everyone  can  come  directly 
into  court  and  establish  his  rights.  The  older  law  imposed 
legal  disability  to  sue  or  be  sued  upon  a  number  of  persons, 
usually  those  in  a  domestic  dependent  condition,  as  women 
in  marriage  or  children  under  the  legal  age.  The  modern 
tendency  has  been  to  broaden  this  phase  of  the  law,  and 
in  the  state  of  Washington  it  is  provided: 

Every  action  shall  be  prosecuted  in  the  name  of  the 
real  party  in  interest,  except  as  is  otherwise  provided 
by  law.  [179.] 

§  22.    HUSBAND  AND  WIFE. 

The  law  affecting  the  relationship  of  husband  and  wife 
one  toward  the  other  and  the  relation  of  both  individually 
or  together  has  undergone  an  almost  complete  change  within 
the  last  few  decades.  Woman,  as  a  party  to  the  action  in 
law,  has  been  practically  emancipated.  In  the  eyes  of  the 
law  she  is  now  an  altogether  responsible  person,  one  who 
cannot  cover  her  crimes  nor  avoid  her  liabilities  by  plead- 
ing that  she  is  a  married  woman.  The  woman,  in  so  far  as 
she  can  contract  debts  or  bind  herself  with  obligations,  as 
a  rule,  must  defend  herself  or  prosecute  her  rights  alone 
and  in  her  own  name,  and  that  whether  she  be  married 
or  single. 

Nevertheless,  the  matrimonial  state  so  directly  affects 
many  of  the  most  important  property  rights  of  both  of  the 
persons  to  the  marriage,  that  the  pleader  in  bringing  an 
action  against  either  the  husband  or  the  wife  should  be  at 
pains  to  decide  as  exactly  as  possible  their  true  legal  status. 
In  view  of  the  nature  of  the  actions  in  justice  court  and 
from  the  further  fact  that  the  interests  of  real  estate  are 
beyond  the  jurisdiction  of  the  justice  of  the  peace,  the 
question  of  the  propriety  or  necessity  of  either  spouse  to 


THE  PARTIES   TO   THE  ACTION.  11 

an  action  in  the  justice  court  is  very  much  simplified.  The 
pleader,  however,  who  seeks  to  secure  a  judgment  which 
shall  be  binding  upon  the  community  property  of  both  par- 
ties after  the  proper  steps  are  taken  to  make  the  judgment 
a  lien  thereon,  should  be  informed  of  the  general  statutes 
governing  this  matter  of  the  legal  capacity  of  married  per- 
sons, both  male  and  female,  to  be  parties  to  the  action. 

§  23.    WHEN  HUSBAND  AND  WIFE  MUST  JOIN  IN 
THE  ACTION. 

The  general  rule  in  the  state  of  Washington  is  that  when 
a  married  woman  is  made  a  party  to  an  action,  her  husband 
must  be  joined  with  her  as  one  of  the  parties.  The  excep- 
tion to  this  is,  as  we  have  stated  above,  when  the  wife  has 
capacity  to  obligate  herself  with  debts  and  contracts.  In 
that  event  she  may  sue  or  be  sued  alone. 

1.  When  the  action  concerns  her  separate  property, 
or  her  right  or  claim  to  the  homestead  property ; 

2.  When  the  action  is  between  herself  and  her  hus- 
band, she  may  sue  or  be  sued  alone ; 

3.  When  she  is  living  separate  and  apart  from  her 
husband  she  may  sue  or  be  sued  alone.    [181.] 

The  plaintiff  should  take  pains  to  understand  the  exact 
nature  of  these  exceptions.  Attention  to  this  matter  will 
save  a  good  deal  of  unnecessary  costs. 

§  24.    WHEN  HUSBAND  AND  WIFE  MAY  JOIN  IN  THE 
ACTION. 

It  should  be  thoroughly  understood  at  this  point  that  the 
relation  of  the  husband  and  wife  before  marriage  in  the 
matter  of  debts  and  obligations  with  third  persons  is  not 
affected  by  the  union. 

§  25.    SEPARATE  AND  ANTENUPTIAL  DEBTS. 

Neither  husband  nor  wife  is  liable  for  the  debts  or 
liabilities  of  the  other  incurred  before  marriage  nor 
for  the  separate  debts  of  each  other,  nor  is  the  rent  or 
income  of  the  separate  property  of  either  liable  for  the 
separate  debts  of  the  other.  [5930.} 


12  JUSTICE  OP  THE  PEACE  GUIDE. 

Another  matter  which  has  undergone  some  change,  even 
within  a  comparatively  few  years,  is  the  question  of  the 
liability  of  the  wife  to  be  joined  in  an  action  against  the 
husband  on  a  promissory  note,  when  the  said  note  evi- 
denced a  community  debt. 

§  26.    WHEN  WIFE  MAY  BE  JOINED  ON  HUSBAND'S 
PROMISSORY  NOTE. 

In  the  case  of  McDonough  v.  Craig,  reported  in  10 
Wash.  239,  the  supreme  court  of  the  state  of  Washington 
held  that  in  an  action  upon  a  promissory  note  executed  by 
the  husband  alone  for  what  is  properly  alleged  to  be  a  com- 
munity debt,  it  is  proper  to  make  the  wife  a  party  defend- 
ant. If  the  plaintiff  secures  judgment  upon  the  note,  he 
is  therefore  entitled  to  have  the  debt  adjudged  to  be  one 
binding  upon  the  community  property. 

§  27.    THE  GENERAL  RULE. 

The  law  on  this  subject  is  covered  by  the  following 
statute : 

Husband  and  wife  may  join  in  all  causes  of  action 
arising  from  injuries  to  the  person  or  character  of  either 
or  both  of  them,  or  from  injuries  to  the  property  of 
either  or  both  of  them,  or  arising  out  of  any  contract 
in  favor  of  either  or  both  of  them.  If  a  husband  and 
wife  be  sued  together,  the  wife  may  defend  for  her 
own  right,  and  if  the  husband  neglect  to  defend,  she 
may  defend  for  his  right  also.  And  she  may  defend  in 
all  cases  in  which  she  is  interested,  whether  she  is  sued 
with  her  husband  or  not.  [182.] 

§  28.    LIABILITY  FOR  THE  EXPENSES  OF  THE  FAM- 
ILY. 

The  property  of  either  the  husband  or  the  wife,  or  of  both, 
is  properly  chargeable  with  the  family  expenses. 

The  expenses  of  the  family  and  the  education  of 
the  children  are  chargeable  upon  the  property  of  both 
husband  and  wife,  or  either  of  them,  and  in  relation 
thereto  they  may  be  sued  jointly  or  separately.  [5931.] 


THE  PARTIES  TO  THE  ACTION.  13 

§  29.    TO  SECURE   JUDGMENT  AGAINST  THE   COM- 
MUNITY  PROPERTY. 

The  justice  having  jurisdiction  and  the  necessary  parties 
appearing  upon  the  pleadings,  judgment  which  shall  be- 
come a  lien  on  the  community  or  separate  property  is 
usually  asked  for  in  the  prayer  for  relief  which  closes  the 
plaintiff's  complaint;  judgment  against  the  community  es- 
tate being  particularly  prayed  for.  The  absence  of  a  specific 
demand  for  such  judgment  does  not  prevent  the  rendition 
of  such  judgment  if  the  proper  jurisdictional  facts  appear 
and  it  appear  that  the  action  is  against  the  husband  and 
wife  jointly. 

§  30.    INFANTS. 

By  reason  of  his  immaturity  and  want  of  experience,  the 
courts  protect  the  infant  fully,  nor  suffer  his  own  acts 
nor  the  acts  of  other  persons  to  prejudice  his  rights.  In- 
fancy is  the  period  of  a  person's  age  from  his  birth  until 
he  attains  the  age  of  twenty-one  years,  or,  if  the  infant 
be  a  female,  until  she  attains  the  age  of  eighteen  years. 

No  action  shall  be  commenced  by  an  infant  plaintiff, 
except  by  his  guardian  or  until  a  next  friend  for  such 
infant  shall  have  been  appointed.  Whenever  re- 
quested, the  justice  shall  appoint  some  suitable  person, 
who  shall  consent  thereto  in  writing,  to  be  named  by 
such  plaintiff,  to  act  as  his  next  friend  in  such  action, 
who  shall  be  responsible  for  the  costs  therein.  [1771.} 

§  31.    WHEN  THE  INFANT  IS  DEFENDANT  HE  LIKE- 
WISE APPEARS  BY  GUARDIAN. 

After  service  and  return  of  process  against  an  infant 
defendant,  the  action  shall  not  be  further  prosecuted 
until  a  guardian  for  such  infant  shall  have  been  ap- 
pointed. Upon  the  request  of  such  defendant,  the  jus- 
tice shall  appoint  some  person,  who  shall  consent  thereto 
in  writing,  to  be  guardian  of  the  defendant  in  defense 
of  the  action;  and  if  the  defendant  shall  not  appear 
on  the  return  day  of  the  process,  or  if  he  neglect  or 
refuse  to  nominate  such  guardian,  the  justice  may,  at 
the  request  of  the  plaintiff,  appoint  any  discreet  person 
as  such  guardian.  The  consent  of  the  guardian  or  next 


14  JUSTICE  OP  THE  PEACE  GUIDE. 

friend  shall  be  filed  with  the  justice ;  and  such  guardian 
for  the  defendant  shall  not  be  liable  for  any  costs  in  the 
action.  [1772.] 

§  32.    ADMINISTRATORS,  ETC. 

The  executor  or  administrator  of  an  estate,  the  guardian 
of  a  minor,  and,  in  fact,  persons  obligated  with  an  express 
trust,  or  authorized  by  statute,  are  often  compelled  to  come 
into  the  courts  to  prosecute  actions  on  behalf  of  their  trust 
or  their  wards.  In  such  cases  the  law  empowers  them  to 
bring  the  action  in  their  own  names. 

An  executor  or  administrator,  or  guardian  of  a  minor 
or  person  of  unsound  mind,  a  trustee  of  an  express 
trust,  or  a  person  authorized  by  statute,  may  sue  with- 
out joining  the  person  for  whose  benefit  the  suit  is 
prosecuted.  A  trustee  of  an  express  trust  within  the 
meaning  of  this  section,  shall  be  construed  to  include  a 
person  with  whom  or  in  whose  name  a  contract  is  made 
for  the  benefit  of  another.  [180.] 

When  suit  is  brought  by  such  administrator  or  executor, 
it  is  the  practice  to  set  forth  in  the  complaint  the  facts 
of  such  administration,  to  wit,  the  death  of  the  intestate; 
that  letters  of  administration  were  issued  from  the  superior 
court  to  the  plaintiff;  that  the  plaintiff  thereupon  qualified 
as  such  administrator,  and  that  the  letters  of  administra- 
tion have  not  been  revoked. 

§  33.    ASSIGNEES  AS  PARTIES. 

The  exigencies  of  commerce  and  business  have  created 
the  custom  of  assigning  book  accounts,  judgment  bonds 
and  other  choses  in  action  to  third  persons.  The  action 
which  the  assignor  would  have  on  such  accounts  is  thereby 
transferred  to  the  assignee,  and  the  latter  may  sue  thereupon 
in  his  own  name. 

Any  assignee  or  assignees  of  any  judgment  bond, 
specialty,  book  account,  or  other  chose  in  action  for 
the  payment  of  money,  by  assignment  in  writing  signed 
by  the  person  authorized  to  make  the  same,  may,  by 
virtue  of  such  assignment,  sue  and  maintain  an  action 
or  actions  in  his  or  her  name,  against  the  obligors, 
debtor  or  debtors,  therein  named,  notwithstanding  the 
assignor  may  have  an  interest  in  the  thing  assigned: 


THE  PABTIES  TO  THE  ACTION.  15 

Provided,  that  any  debtor  may  plead  in  defense  a  coun- 
terclaim or  an  offset,  if  held  by  him  against  the  original 
owner,  against  the  debt  assigned,  save  that  no  counter- 
claim or  offset  shall  be  pleaded  against  negotiable  paper 
assigned  before  due,  and  where  the  holder  thereof  has 
purchased  the  same  in  good  faith  and  for  value,  and  is 
the  owner  of  all  interest  therein.  [191.] 

It  will  be  noticed  that  the  proviso  permits  the  debtor  to 
counterclaim  or  offset  against  the  debt  assigned.  The  as- 
signment of  such  a  debt,  therefore,  does  not  affect  any  rights 
which  the  debtor  may  have  against  the  debt.  In  the  case 
of  negotiable  instruments  assigned  before  they  are  due, 
the  holder  who  has  purchased  the  same  in  good  faith  may 
hold  the  same  against  any  counterclaim  or  offset  on  the  part 
of  the  debtor.  This  provision  is  made  necessary  by  the 
practices  of  business  life,  and  is  designed,  of  course,  to 
prevent  the  impairment  of  the  negotiability  of  such  in- 
struments. 

It  is  not  necessary  in  your  complaint  in  an  action  upon 
an  account  which  has  been  assigned  to  allege  that  the  as- 
signment is  in  writing.  It  may,  however,  be  necessary  to 
prove  a  written  assignment  upon  the  trial  of  the  case. 

In  the  assignment  of  a  promissory  note  for  collection  or 
for  the  purpose  of  suing  thereon,  his  interest  therein  is  con- 
sidered sufficient  to  make  him  the  real  party  in  interest. 

A  negotiable  instrument  indorsed  after  maturity  is  sub- 
ject to  any  and  all  defenses  existing  between  the  maker 
and  the  payee,  although  an  indorsee  after  maturity,  taking 
it  from  one  who  acquired  the  instrument  before  maturity, 
takes  free  from  such  equities. 

§  34.  PARTNERS  AND  CORPORATIONS  AS  PARTIES. 

Partnerships  and  corporations  may  be  sued  in  the  firm 
or  corporate  name  and  may  sue  in  such  firm  or  corporate 
name.  When  the  firm  is  bringing  suit,  it  is  proper  to  set 
forth  in  the  complaint  that  the  plaintiff  is  a  copartner- 
ship, and  if  the  plaintiff  be  a  corporation,  it  is  the  practice 
to  state  in  the  complaint  that  the  said  corporation  is  duly 
organized  and  existing  under  and  by  virtue  of  the  laws  of 


16  JUSTICE  OP  THE  PEACE  GUIDE. 

the  state  of  Washington,  together  with  a  further  allega- 
tion that  the  annual  license  fee  last  due  under  the  law  has 
been  paid.  In  a  suit  against  persons  forming  a  copartner- 
ship, when  sued  as  individuals  composing  the  partnership, 
being  particularly  designated  in  the  papers  of  the  case, 
and  judgment  is  therein  obtained  in  the  firm  name,  the  said 
judgment  will  not,  under  such  circumstances,  be  void. 

§  35.    PERSONS  SEVERALLY  LIABLE  AS  PARTIES. 

Persons  severally  liable  upon  the  same  obligation  or 
instrument,  including  the  parties  to  bills  of  exchange 
and  promissory  notes,  may  all,  or  any  of  them,  be  in- 
cluded in  the  same  action,  at  the  option  of  the  plaintiff. 
[192.] 

§  36.    RIGHTS  OP  PARTIES  TO  INTERVENE. 

Any  person  may,  before  the  trial,  intervene  in  an 
action  or  proceeding,  who  has  an  interest  in  the  matter 
in  litigation,  in  the  success  of  either  party,  'or  an  in- 
terest against  both.  An  intervention  takes  place  when 
a  third  person  is  permitted  to  become  a  party  to  an 
action  or  proceeding  between  other  persons,  either  by 
joining  the  plaintiff  in  claiming  what  is  sought  by  the 
complaint,  or  by  uniting  with  the  defendant  in  resisting 
the  claim  of  the  plaintiff,  or  by  demanding  anything 
adversely  to  both  the  plaintiff  and  defendant,  and  is 
made  by  a  complaint  setting  forth  the  grounds  upon 
which  the  intervention  rests  filed  by  leave  of  the  court 
or  judge  on  the  ex  parte  motion  of  the  party  desiring 
to  intervene.  [202.] 

The  procedure  when  permission  to  intervene  is  given  by 
the  court  follows: 

When  leave  is  given  to  intervene,  a  copy  of  the  in- 
tervener's  complaint  shall  be  served  upon  the  parties 
to  the  action  or  proceedings  who  have  not  appeared, 
or  publication  of  a  notice  of  the  intervention  contain- 
ing a  brief  statement  of  the  nature  of  the  intervener's 
demand  shall  be  made  in  all  cases  where  are  absent  or 
nonresident  defendants.  The  notice  shall  be  published 
in  the  same  manner  and  for  the  same  length  of  time  as 
prescribed  by  law  for  publication  of  summons.  And 
the  complaint  shall  also  be  served  upon  the  attorneys 


THE  PARTIES  TO  THE  ACTION.  17 

of  the  parties  who  have  appeared,  who  may  answer  or 
demur  to  it  as  if  it  were  an  original  complaint.  The 
court  shall  determine  upon  the  rights  of  the  intervener 
at  the  same  time  the  action  is  decided,  and  if  the  claim 
of  the  party  intervening  is  not  sustained,  he  shall  pay 
all  costs  incurred  by  the  intervention:  Provided,  that 
no  intervention  shall  be  cause  for  delay  in  the  trial  of 
an  action  between  the  original  parties  thereto.  [203.} 

§  37.    DEFECT  OF  PARTIES. 

We  have  seen  that  the  general  rule  is  that  an  action  at 
law  should  be  prosecuted  in  the  name  of  the  real  party 
in  interest. 

§  38.    CORRECTING  MISTAKE  IN  NAME. 

If  it  should  appear  that  there  is  a  mistake  in  the  name 
of , one  of  the  parties  to  an  action,  the  mistake  may  be  cor- 
rected at  any  time.  The  justice  should  make  an  entry  on 
his  docket  showing  the  correction. 

§  39.    STRIKING  ONE  OF  THE  PLAINTIFFS  OUT. 

Sometimes,  when  there  are  two  or  more  parties  plaintiff, 
one  will  be  joined  who  has  no  cause  of  action.  In  that 
event  his  name  may  be  stricken  out  and  the  proper  entry 
made  in  the  docket  showing  the  ruling  of  the  court.  The 
costs  should  be  taxed  against  the  party  needlessly  bringing 
the  stricken  party  into  the  case. 

§  40.    WHEN  THE  WRONG  DEFENDANT  IS  SUED. 

If  there  is  only  one  defendant,  and  it  should  appear  from 
the  testimony  that  he  is  the  wrong  person  and  that  some 
other  person  should  have  been  made  defendant,  the  name 
of  another  person  cannot  be  substituted  for  that  of  the 
defendant,  and  the  plaintiff  will  fail. 

§  41.    RIGHTS  OF  ONE  NOT  MADE  A  PARTY. 

If,  by  proceeding  to  trial,  the  rights  of  a  person  not  made 
a  party  plaintiff  will  not  be  prejudiced,  it  will  not  be  neces- 
sary to  make  him  a  party. 

The  procedure  generally  in  amending  the  various  plead- 
ings to  omit  or  insert  the  name  or  names  of  parties  plain- 
2 


18  JUSTICE  OP  THE  PEACE  GUIDE. 

tiff  or  defendant  is  to  apply  for  leave  by  motion,  settinw 
forth  the  facts  and  the  names.  If  the  amended  parties 
have  not  appeared  in  court,  they  must  be  served  with  due 
notice  as  if  they  were  original  parties  and  thus  given  an 
opportunity  to  defend.  The  justice  will  make  the  proper 
entries  in  his  docket  showing  the  rulings  in  the  case. 


THE  PLEADINGS.  19 


CHAPTER  III. 

THE  PLEADINGS. 

HOW  THE  PLAINTIFF  PREPARES  HIS  CASE  FOB  TBJAlt 

42.  The  complaint — What  is  meant  by  pleadings. 

43.  Contents  of  the  complaint. 

44.  Oral  pleadings. 

45.  Pleadings  for  money  only. 

46.  Pleadings  to  be  made  certain. 

47.  The  parts  of  a  complaint. 

48.  Title. 

49.  Parties. 

50.  The  statement  of  the  cause  of  action — Plain  laagiage. 

51.  Be  certain. 

52.  Ambiguity. 

53.  Daplicity. 

54.  Repugnancy. 

55.  Evidentiary  facts. 

56.  General  statements. 

57.  Neatness. 

58.  Joinder  of  causes  of  action. 

59.  The  prayer  for  relief. 

60.  Verification. 

61.  When  pleadings  take  place. 

§  42.    THE     COMPLAINT— WHAT     IS     MEANT     BY 
PLEADINGS. 

The  object  of  every  step  and  every  movement  in  an  action 
at  law  is  to  cause  to  issue  from  the  statements  of  both 
the  plaintiff  and  defendant  some  particular  point  or  points 
upon  which  the  judge  or  jury  may  make  an  adjudication. 
Was  such  and  such  an  agreement  made?  What  was  the 
nature  of  the  agreement?  Has  the  agreement  been  carried 
out  or  has  it  not?  These  are  the  vital  facts  which  the 
statements  should  put  squarely  before  the  court,  and  sueh 
preliminary  statements,  statements  other  than  the  evidence, 
are  generally  called  the  pleadings.  Let  the  pleader  re- 
member to  exert  his  ingenuity  in  raising  the  real  issue 
in  the  case;  let  him  closely  regard  the  controverted  point 
and  much  verbiage  and  surplusage  will  be  thereby  avoided. 


20  JUSTICE  OP  THE  PEACE  GUIDE. 

Now,  it  is  provided  that  the  pleadings  in  justice  court 
may  be  either  spoken  or  written: 

The  pleadings  in  justice  court  may  be  oral  or  in 
writing.  [1780.] 

When  the  justice  has  any  considerable  number  of  cases, 
as  in  a  busy  city  precinct,  the  pleadings  are  usually  in 
writing.  In  other  cases  the  pleadings  may  take  place  upon 
the  appearance  of  the  parties  unless  they  shall  have  been 
previously  filed. 

The  pleadings  in  the  justice  court  shall  be: 

(1)  The  complaint  of  the  plaintiff,  which  shall  state 
in  a  plain  and  direct  manner  the  facts  constituting  the 
cause  of  action; 

(2)  The  answer  of  the  defendant,  which  may  con- 
tain a  denial  of  the  complaint,  or  any  part  thereof, 
and  also  a  statement,  in  a  plain  and  direct  manner,  of 
any  facts  constituting  a  defense; 

(3)  When  the  answer  sets  up  a  setoff  by  way  of 
defense,  the  reply  of  the  plaintiff.     [1779.] 

The  first  step,  then,  is  the  complaint.  The  complaint 
means  just  what  the  word  means — a  complaining  to  the 
court  of  some  wrong.  The  law  has  defined  what  the  com- 
plaint shall  contain. 

§  43.     CONTENTS  OF  THE  COMPLAINT. 
The  complaint  shall  contain: 

(1)  The  title  of  the  cause,  specifying  the  name  of 
the  court,  the  name  of  the  county  in  which  the  action 
is  brought  and  the  name  of  the  parties  to  the  action, 
plaintiff  and  defendant. 

(2)  A  plain  and  concise  statement  of  facts  consti- 
tuting the  cause  of  action,  without  unnecessary  repeti- 
tion. 

(3)  A   demand  for  the   relief   which  the  plaintiff 
claims;  if  the  recovery  of  money  or  damages  be  de- 
manded, the  amount  thereof  shall  be  stated.    [258.] 

§  44.     ORAL  PLEADINGS. 

When  the  pleadings  are  oral,  the  substance  of  them 
shall  be  entered  by  the  justice  in  his  docket.  When 
in  writing  they  shall  be  filed  in  his  office  and  a  refer- 


THE  PLEADINGS.  21 

ence  made  to  them  in  his  docket.  Pleadings  shall  not 
be  required  to  be  in  any  particular  form,  but  shall 
be  such  as  to  enable  a  person  of  common  understand- 
ing to  know  what  is  intended.  [1786.] 

§  45.    PLEADINGS  FOR  MONEY  ONLY. 

When  the  cause  of  action,  or  setoff,  arises  upon  an 
account  or  instrument  for  the  payment  of  money  only, 
it  shall  be  sufficient  for  the  party  to  deliver  the  ac- 
count or  instrument,  or  a  copy  thereof,  to  the  court, 
and  to  state  that  there  is  due  to  him  thereon,  from 
the  adverse  party,  a  specified  sum,  which  he  claims  to 
recover  or  set  off.  The  court  may,  at  the  time  of 
pleading,  require  that  the  original  account,  or  instru- 
ment, be  exhibited  to  the  inspection  of  the  adverse 
party,  with  liberty  to  copy  the  same;  or  if  not  so  ex- 
hibited, may  prohibit  it  being  given  in  evidence. 
,  [1783.] 

§  46.    PLEADINGS  TO  BE  MADE  CERTAIN. 

Either  party  may  object  to  a  pleading  by  his  ad- 
versary, or  to  any  part  thereof  that  is  not  sufficiently 
explicit  for  hi™  to  understand  it,  or  that  it  contains 
no  cause  of  action  or  defense,  although  it  be  taken  as 
true.  If  the  court  deem  the  objection  well  founded, 
it  shall  order  the  pleading  to  be  amended;  and  if  the 
party  refuse  to  amend,  the  defective  pleading  shall  be 
disregarded.  [1786.] 

§  47.  THE  PARTS  OF  A  COMPLAINT. 

The  complaint  is  roughly  divisible  into  five  parts: 

(1)  The  title. 

(2)  The  names  of  the  parties. 

(3)  A  statement  of  the  cause  of  action. 

(4)  The  demand  or  prayer  for  relief. 

(5)  The  oath,  or  verification. 

§  48.    TITLE. 

This  is  the  venue  or  county  and  state  in  which  the  court 
has  jurisdiction  which  is  to  try  the  case.  It  is  important 
that  the  title  show  the  name  of  the  justice  trying  the 
cause,  as: 


22  JUSTICE  OP  THE  PEACE  GUIDE. 

"In  Justice's  Court. 

Before  James  C.  Smith,  Justice  of  the  Peace,  Seattle  Pre- 
cinct, King  County,  Washington," 

§  49.    PARTIES. 

First  the  name  of  the  plaintiff  and  then  the  name  or 
names  of  the  defendant  or  defendants.  When  the  true 
name  of  a  party  is  not  known,  a  fictitious  name  may  be 
inserted,  as  "John  Doe  Brown  (whose  true  Christian  name 
is  to  the  plaintiff  unknown),"  or  "John  Doe  (whose  true 
Christian  name  is  to  the  plaintiff  unknown)."  If  the  plain- 
tiff or  defendant  be  a  corporation,  the  name  should  appear 
"Seattle  Wire  Works,  a  corporation."  If  the  parties 
should  be  partners,  it  is  proper  to  entitle  them  "James 
Jones  and  William  Mitchell,  copartners,  doing  business 
under  the  designation  of  Tacoma  Laundry." 

§  50.    THE    STATEMENT    OP    THE    CAUSE    OF    AC- 
TION— PLAIN  LANGUAGE. 

Leave  many  syllabled  words  to  scientific  treatises,  and 
flowery  expressions  to  love  letters.  Be  clear  in  your  think- 
ing and  you  will  be  clear  in  your  pleading.  State  your 
case  simply  and  effectively  and  only  state  it  once.  Don't 
keep  repeating  and  enlarging  on  your  troubles.  If  you 
are  suing  the  defendant  for  the  price  of  a  barrel  of  sugar, 
say  directly  that  it  was  sugar,  that  it  was  a  barrelful,  and 
that  the  agreed  price  was  what  it  was.  Do  not  go  into 
the  whole  question  of  the  origin  of  that  sugar,  how  it  was 
grown  in  the  cane  in  sunny  Demerara,  how  it  was  ex- 
tracted from  the  cane,  and  the  name  of  the  vessel  by  which 
it  was  imported  into  the  United  States,  and  whether  or 
not  the  crew  of  that  vessel  were  well  fed  and  received 
their  wages.  Remember,  we  are  all  suspicious  of  the  story 
•which  is  told  hidden  and  secreted  in  a  mass  of  irrelevant 
matter,  and  this  attitude,  consciously  or  unconsciously,  is 
adopted  by  all  who  have  to  consider  redundant  pleadings. 

§  81.    BE  CERTAIN. 

State  as  positively  as  you  can  the  facts  surrounding  the 
transaction  in  question.  Be  particular  to  show  the  facts 


THE   PLEADINGS.  23 

of  time,  place,  values  and  parties  where  those  facts  are 
necessary  to  a  clear  presentation  of  your  case.  When  you 
are  not  certain,  you  may  allege  that  the  transaction  took 
place  some  time  within  the  statute  of  limitations,  as  "dur- 
ing the  two  years  last  past."  This,  however,  invites  your 
opponent  to  demand  an  itemized  statement  of  the  business, 
or  bill  of  particulars  as  it  is  called,  and  will  delay  the  judg- 
ment of  your  cause.  When  there  are  a  great  many  items, 
of  course,  you  may  properly  allow  your  adversary  a  bill 
of  particulars. 

§  52.    AMBIGUITY. 

The  effect  of  words  that  have  either  no  definite  sense 
or  else  a  double  one. 

ft  53.    DUPLICITY. 

This  means  uniting  in  one  count  matters  which  really 
are  two  causes  of  action  to  support  one  claim  of  recovery. 

§  54.    REPUGNANCY. 

Simply  statements  in  your  cause  of  action  which  do  not 
agree  or  contradict  each  other. 

The  whole  effort  of  the  pleader  is  to  tell  a  straight  story. 
With  this  purpose  fixedly  in  mind  you  will,  without  being 
an  expert  pleader,  be  able  to  determine  whether  or  not  you 
are  ambiguous  or  confused. 

§  55.    EVIDENTIARY  FACTS. 

It  is  improper  to  plead  in  your  complaint  those  details 
of  a  transaction  which  should  be  brought  out  by  the  evi- 
dence upon  the  trial  of  your  cause.  Clear  your  paragraphs 
of  all  such,  allov;ing  each  clause  in  your  statement  to  be 
a  bare  but  fruitful  branch  which  shall  blossom  with  evi- 
dence in  the  proper  season. 

§  56.    GENERAL  STATEMENTS. 

When  the  possession  of  property  is  in  dispute,  allege 
generally  the  plaintiff's  right  and  title  thereto.  By  or 
against  a  corporation,  allege  its  legal  existence.  In  ac- 
tions upon  a  contract,  allege  the  consideration.  This  is 


24  JUSTICE  OP  THE  PEACE  GUIDE. 

not  necessary  in  those  contracts  in  which  the  law  presumes 
a  consideration.  This  implied  consideration  operates  usu- 
ally in  the  matter  of  negotiable  instruments. 

§  57.    NEATNESS. 

Not  the  least  virtue  is  the  neat  preparation  of  pleadings. 
Each  separate  statement  should  be  numbered  and  para- 
graphed as  in  the  sample  form. 

§  58.    JOINDER  OF  CAUSES  OF  ACTION. 

The  plaintiff  may  unite  several  causes  of  action  in  the 
same  complaint,  when  they  all  arise  out  of: 

(1)  Contract,  express  or  implied;  or 

(2)  Injuries,  with  or  without  force,  to  the  person;  or 

(3)  Injuries,  with  or  without  force,  to  property;  or 

(4)  Injuries  to  character;  or 

(5)  Claims  to  recover  personal  property,  with  or 
without  damages,  for  the  withholding  thereof;  or 

(6)  Claims  against  a  trustee,  by  virtue  of  a  contract 
or  by  operation  of  law. 

But  the  causes  of  action,  so  united,  must  affect  all 
the  parties  to  the  action,  and  not  require  different 
places  of  trial,  and  must  be  separately  stated.  [296.] 

§  59.    THE  PRATER  FOR  RELIEF. 

If  the  plaintiff  is  suing  for  the  price  of  a  barrel  of  sugar, 
say  valued  at  five  dollars,  he  will  conclude  his  statement 
of  the  transaction  by  asking  judgment  for  the  five  dollars, 
together  with  all  the  costs  for  filing  his  complaint,  his  wit- 
nesses, and  so  forth,  and  the  statutory  attorney's  fee,  and 
for  such  other  and  further  relief  as  to  the  court  may  seem 
proper. 

§  60.    VERIFICATION. 

Every  complaint,  answer,  or  reply  shall  be  verified 

by  the  oath  of  the  party  pleading;  or  if  he  be  not 

present,  by  the  oath  of  his  attorney  or  agent,  to  the 

effect  that  he  believes  it  to  be  true.  The  verification 
shall  be  oral  or  in  writing,  in  conformity  with  the 
pleading  verified.  [1784.] 

This  is  the  oath  which  seals  the  complaint.  The  com- 
plaint is  insufficient  without  such  verification. 


THE  PLEADINGS.  25 

GENERAL  FORM. 

The  Complaint  in  Action  upon  a  Promissory  Note. 
In  Justice's  Court. 

Before  R.  R.  George,  Justice  of  the  Peace,  in  and  for 
Seattle  Precinct,  King  County,  State  of  Washing- 
ton. 

No.  41,144. 
Nathaniel  Grumble, 

Plaintiff, 
vs. 

Jonathan  Quibble, 

Defendant.  _, 

COMPLAINT. 

Comes  now  the  plaintiff  and  for  cause  of  action 
against  the  defendant  alleges: 

L 

That  plaintiff  and  defendant  are  residents  of  Seattle 
Precinct,  King  County,  state  of  Washington; 

n. 

That  on  the  1st  day  of  August,  1911,  at  Seattle,  King 
County,  state  of  Washington,  the  defendant,  Jonathan 
Quibble,  made  his  certain  promissory  note  in  writing, 
bearing  date  the  1st  day  of  August ;  the  said  note  being 
in  words  and  figures  as  follows,  to  wit :  [make  an  exact 
copy  of  the  note] ,  and  then  and  there  delivered  the  said 
note  to  the  plaintiff  herein ; 

m. 

That  the  plaintiff  is  the  holder  and  owner  of  said  note ; 
that  the  same  has  not  been  paid,  nor  any  part  thereof. 

Wherefore  the  plaintiff  prays  that  he  have  judgment 
against  the  defendant  in  the  sum  of  [principal  of  note], 
together  with  interest  thereon  amounting  to  [insert  here 
interest],  together  with  his  costs  and  disbursements  in 
this  suit  incurred. 

NATHANIEL  GRUMBLE, 
Plaintiff. 


26  JUSTICE  OP  THE  PEACE  GUIDE. 

State  of  Washington, 
County  of  King, — ss. 

Nathaniel  Grumble,  being  first  duly  sworn,  on  oath 
deposes  and  says,  that  he  is  the  plaintiff  in  the  above- 
entitled  action,  that  he  has  read  the  foregoing  com- 
plaint, knows  the  contents  thereof  and  believes  the  same 
to  be  true. 

NATHANIEL  GRUMBLE. 

VERIFICATIONS. 

State  of  Washington, 
County  of  King,— ss. 

John  Borne,  being  first  duly  sworn,  says  that  he  is 
the  plaintiff  in  the  above-entitled  action;  that  he  has 
read  [or  heard  read]  the  foregoing  complaint,  knows 
the  contents  thereof,  and  believes  the  same  to  be  true. 

JOHN  BORNE. 

Subscribed  and  sworn  to  before  me  this  3d  day  of 
April,  1912. 

WM.  SEAL, 

Notary  Public  in  and  for  the  State  of  Washington,  Re- 
siding at  Seattle. 

VERIFICATION  BY  PLAINTIFF'S  ATTORNEY. 

State  of  Washington, 
County  of  King, — ss. 

James  Calf,  being  first  duly  sworn,  says  that  he  is  the 
attorney  for  the  plaintiff  in  the  above-entitled  action; 
that  he  has  read  the  foregoing  complaint,  knows  the 
contents  thereof  and  believes  the  same  to  be  true;  and 
that  plaintiff  is  not  present  to  make  this  verification. 

JAMES  CALF. 

Subscribed  and  sworn  to  before  me  this  3d  day  of 
May,  1911. 

WM.  SEAL, 

Notary  Public  in  and  for  the  State  of  Washington,  Re- 
siding at  Seattle. 

§  61.    WHEN  PLEADINGS  TAKE  PLACE. 

The  pleadings  in  justice's  court  shall  take  place 
upon  the  appearance  of  the  parties,  unless  they  shill 
have  been  previously  filed,  or  unless  the  justice  shall, 
for  good  cause  shown,  allow  a  longer  time  than  the 
time  of  appearance.  [1778.] 


TAKING  THE  CAUSE  INTO  COUET.  27 


CHAPTER  IV. 
TAKING  THE  CAUSE  INTO  COURT. 

62.  The  notice. 

63.  The  service  of  complaint  and  notice. 

64.  Time  of  service. 

65.  Bj  whom  service  may  be  made — By  appointed  persona. 

66.  By  publication. 

67.  How  weekly  publication  is  made. 

68.  Sheriffs,  constables,  and  other  persona. 

69.  Manner  of  service. 

70.  Certified  copy. 

71.  Service  when  there  are  two  or  more  defendants. 

72.  The  return  of  process  and  proof  of  service — Penaltj. 

73.  How  service  is  proved. 

74.  Rules  adopted  by  King  County  justices. 

75.  Other  methods  of  commencing  actions. 

76.  Action  commenced  by  summons. 

77.  Action   commenced  by   complaint   and  notice. 

78.  The   defendant's   answer,  etc. 

79.  When  the  defendant  is  in  default. 

80.  The  dismissal  of  the  action. 

81.  The  defendant's  appearance. 

82.  The  special  appearance. 

83.  The  continuance. 

84.  Continuance  by  agreement  of  the  parties, 

85.  Amendments   generally. 

86.  The  answer  of  the  defendant. 

87.  The  denial. 

88.  Denial  of  knowledge  or  information. 

89.  Undenied   allegations  admittedly   true. 

90.  General  rules  governing  the  preceding  pleadings — Amendments. 

91.  Filing   amended    pleadings. 

92.  Variance   between   the   pleadings   and  the  proof. 

93.  Immaterial  variance. 

94.  Practice  in  case  of  variance. 

95.  Failure  to  prove. 

96.  Amendments  generally. 

97.  Setoffs. 

98.  Counterclaims. 

99.  Setoffs  generally. 

100.  Allowing  setoff. 

101.  The  plaintiff's  reply. 


28  JUSTICE  OP  THE  PEACE  GUIDE. 

You  have  now  prepared  your  complaint  and  it  has  been 
verified,  or  sworn  to.  Now  is  the  time  to  begin  putting 
the  agency  of  the  law  into  operation;  in  other  words,  you 
are  ready  to  bring  the  cause  into  court. 

§  62.    THE  NOTICE. 

Any  person  desiring  to  commence  an  action  before 
a  justice  of  the  peace,  by  the  service  of  a  complaint 
and  notice,  can  do  so  by  filing  his  complaint  verified 
by  his  own  oath  or  that  of  his  agent  or  attorney  with 
the  justice,  and  when  such  complaint  is  so  filed,  upon 
payment  of  his  fees  if  demanded,  the  justice  shall  at- 
tach thereto  a  notice,  which  shall  be  substantially  as 
follows: 

FORM. 
State  of  Washington, 

County, — ss. 

To (In  the  name  of  the  state  of  Washington). 

You  are  hereby  notified  to  be  and  appear  at  my  office 

in  on  the  day  of  ,  19 ,  at 

the  hour  of M.,  to  answer  to  the  foregoing  com- 
plaint or  judgment  will  be  taken  against  you  as  con- 
fessed and  the  prayer  of  the  plaintiff  granted. 


Dated ,  19. ...     [1759.]  J.  P. 

The  practice  generally  is  for  the  attorney  or  the  person 
desiring  to  commence  an  action  in  the  justice  court  to  ob- 
tain from  the  clerk  of  the  court  a  blank  printed  notice, 
which  blanks  are  supplied  free  of  charge.  The  pleader 
will  fill  in  the  name  of  the  justice  and  the  names  of  the 
parties,  leaving  the  date  of  the  return  day  blank  and  leav- 
ing blank  the  line  for  the  justice's  signature.  He  will 
draw  his  complaint  with  an  original  and  two  carbon  copies 
thereof,  the  original  to  be  filed  with  the  clerk  of  the  court, 
one  copy  to  be  served  upon  the  defendant  and  the  plain- 
tiff retaining  the  last  copy  for  his  own  use  and  reference. 

You  now  have  the  original  complaint  attached  to  the 
original  notice  blank.  You  also  have  a  copy  of  the  com- 
plaint attached  to  a  copy  of  the  notice.  These  two  sets 
you  will  take  to  the  clerk  of  the  court,  leaving  your  third 
copy  in  your  office  files. 


TAKING  THE   CAUSE  INTO  COURT.  29 

You  present  your  original  complaint  with  the  notice  at- 
tached to  the  clerk  and  will  pay  him  the  filing  fee  of  one 
dollar. 

The  clerk  then  puts  the  next  consecutive  number  on  the 
original  complaint,  which  is  the  number  under  which  it 
will  be  hereafter  distinguished  in  all  the  records.  You 
should  copy  that  number  onto  the  copy  of  the  complaint 
and  notice  which  you  have  brought  with  you. 

The  next  thing  is  for  the  clerk  to  give  you  the  return 
day,  or  the  day  on  which  the  defendant  must  make  his 
appearance  and  answer  in  the  cause.  If  it  is  a  busy 
justice  court  with  a  great  many  cases  awaiting  deliberation, 
the  return  day  may  be  some  weeks  off.  When  the  clerk 
fills  in  on  the  original  notice  the  date  of  return,  you  copy 
that  date  into  your  copy  of  the  notice. 
'  The  clerk  will  then  affix  the  justice's  signature  to  the 
original  notice  and  you  will  enter  the  signature  on  your 
copy  of  the  notice. 

You  receive  a  receipt  for  your  one  dollar  filing  fee  and 
depart,  leaving  the  original  complaint  and  notice  in  the 
files  of  the  court  and  taking  with  you  the  copy  of  the 
complaint  and  notice,  which  are  now  ready  for  service  on 
the  defendant. 

Of  course,  it  is  not  necessary  for  you  to  take  that  copy 
into  court  when  you  file  your  original;  you  may  get  the 
number  of  the  case  and  the  return  day  from  the  clerk 
and  enter  them  on  your  copy  when  you  get  back  to  the 
office.  You  will  guard  against  error  and  confusion,  how- 
ever, by  following  the  method  I  have  outlined  to  you  above. 

What  the  clerk  does  with  the  original  you  have  left 
with  him  is  considered  under  the  duties  of  the  justice 
of  the  peace;  but  as  we  are  following  the  case  step  by 
step  to  judgment  and  execution,  we  will  consider  next 

§  63.    THE  SERVICE  OF  COMPLAINT  AND  NOTICE. 

Let  us  assume  that  you  filed  your  original  complaint  and 
notice  with  the  court  on-  the  first  day  of  April  and  that 
the  return  day  has  been  set  on  the  fifteenth  day  of  the 
same  month. 


30  JUSTICE  OP  THE  PEACE  GUIDB. 

§  64.    TIME  OP  SERVICE. 

The  complaint  and  notice  shall  be  served  at  least  five 
days  before  the  time  mentioned  in  the  notice  for  the 
defendant  to  appear  and  answer  the  complaint,  by 
delivering  to  the  defendant,  or  leaving  at  his  place  of 
abode,  with  some  person  over  twelve  years  of  age,  a 
true  copy  of  the  complaint  and  notice,  certified  by  the 
officer  or  person  making  the  service  to  be  such.  [1761.] 

§  65.    BY  WHOM  SERVICE  MAY  BE  MADE— BY  AP- 
POINTED PERSONS. 

Any  justice  may,  by  appointment  in  writing,  author- 
ize any  person  other  than  the  parties  to  the  proceeding, 
or  action,  to  serve  any  subpoena,  summons,  or  notice 
and  complaint  issued  by  such  justice;  and  any  such 
person  making  such  service  shall  return  on  such  process 
or  paper,  in  writing,  the  time  and  manner  of  service, 
and  shall  sign  his  name  to  such  return,  and  be  entitled 
to  like  fees  for  making  such  service  as  a  sheriff  or  con- 
stable, and  shall  indorse  his  fees  for  service  thereon: 
Provided,  it  shall  not  be  lawful  for  any  justice  to  issue 
process  or  papers  to  any  person  but  a  regularly  qual- 
ified sheriff  or  constable,  in  any  precinct  where  such 
officers  reside,  unless  from  sickness  or  some  other  cause 
said  sheriff  or  constable  is  not  able  to  serve  the  same: 
Provided  further,  that  it  shall  be  lawful  for  notice  and 
complaint  or  summons  in  a  civil  action  in  the  justice 
court  to  be  served  by  any  person  over  the  age  of 
twenty-one  years  and  not  a  party  to  the  action  in  which 
the  summons  or  notice  and  complaint  shall  be  issued 
without  previous  appointment  by  the  justice.  [1764.] 

§  66.    BY  PUBLICATION. 

In  case  personal  service  cannot  be  had  by  reason  of 
the  absence  of  the  defendant  from  the  county  in  which 
the  action  is  sought  to  be  commenced,  it  shall  be  proper 
to  publish  the  summons  or  notice  with  a  brief  state- 
ment of  the  object  and  prayer  of  the  claim  or  com- 
plaint, in  seme  weekly  newspaper  published  in  the  county 
wherein  the  action  is  commenced;  or  if  there  is  no 
paper  published  in  such  county,  then  in  some  news- 
paper published  in  the  nearest  adjoining  county,  which 
notice  shall  be  published  not  less  than  once  a  week  for 
three  weeks  prior  to  the  time  fixed  for  the  hearing  of 
the  cause,  which  shall  not  be  less  than  four  weeks  from 


TAKING  THE  CAUSE  INTO   COURT.  31 

the  first  publication  of  said  notice.  Said  notice  may  be 
substantially  as  follows: 

FORM. 

State  of  Washington, 
County  of , — ss. 

In  Justice's  Court,  ,  Justice. 

To : 

You  are  hereby  notified  that   has  filed  a 

complaint  [or  claim,  as  the  case  may  be]  against  you 
in  said  court  which  will  come  on  to  be  heard  at  my  of- 
fice in  ,  in  County,  Wash.,  on  the 

day  of A.  D.  19 ,  at  the  hour  of 

o'clock  ....  M.,  and  unless  you  appear  and  then  and 
there  answer,  the  same  will  be  taken  as  confessed  and 
the  demand  of  the  plaintiff  granted.  The  object  and 
demand  of  said  claim  [or  complaint,  as  the  case  may 
be]  is  [here  insert  a  brief  statement]. 

,  J.  P. 

Complaint  filed ,  A.  D.  19 [1766.] 

SERVICE  BY  PUBLICATION. 

Affidavit  for  Publication. 

In  Justice's  Court,  etc. 
[CaseJv    • 

James  Words,  being  first  duly  sworn,  says  that  he  is 
the  plaintiff  in  the  above-entitled  action;  that  the  de- 
fendant cannot  after  due  diligence  be  found  within  the 
said  county  of  King;  that  a  summons  was  duly  issued 
against  said  defendant  and  placed  in  the  hands  of  Henry 
Badge,  a  constable  of  said  county,  for  service,  but  has 
been  returned  by  the  said  Henry  Badge  with  his  indorse- 
ment thereon;  that  defendant  could  not  be  found  in 
said  county  and  that  no  place  of  his  abode  could  be 
found  in  said  county;  which  summons  so  indorsed  is 
now  on  file  in  said  court. 

That  a  cause  of  action  exists  against  the  said  defend- 
ant in  favor  of  the  plaintiff,  as  appears  by  the  complaint 
of  the  plaintiff  on  file  in  this  cause. 

JAMES  WORDS. 

Subscribed  and  sworn,  etc. 


32  JUSTICE  OP  THE  PEACE  GUIDE. 

ORDER  TO  PUBLISH  SUMMONS. 

In  Justice's  Court,  etc. 
[Case.] 

The  affidavit  of  James  Words,  the  plaintiff  in  the 
above-entitled  action,  having  been  filed  herein,  and  it 
appearing  from  the  said  affidavit  that  the  plaintiff  has 
a  just  cause  of  action  against  the  defendant  herein,  and 
it  further  appearing  from  such  affidavit,  and  from  the 
return  upon  the  complaint  and  notice  [or  summons] 
herein  as  well,  that  personal  service  cannot  be  had  upon 
the  defendant,  for  the  reason  that  he  cannot  be  found 
within  the  said  county  and  has  no  known  place  of  abode 
therein : 

It  is  hereby  ordered  that  the  service  of  the  summons 
in  this  action  be  made  upon  the  said  defendant,  requir- 
ing him  to  appear  before  the  undersigned,  one  of  the 
justices  of  the  peace  in  and  for  Seattle  Precinct,  King 
County,  on  the  3d  day  of  January,  1912,  at  9:30  o'clock 
in  the  forenoon,  at  my  office,  in  room  602,  Prefontaine 
Building,  in  the  city  of  Seattle,  King  County,  to  answer 
to  James  Words,  the  plaintiff,  in  a  civil  action,  by  pub- 
lication of  said  summons  in  the  "Broken  Bugle,"  a 
weekly  newspaper  published  in  said  King  County,  once 
in  each  week  for  three  consecutive  weeks. 

Given  under  my  hand  this  12th  day  of  December, 
1911. 

R.  R.  GEORGE, 
Justice  of  the  Peace. 

SUMMONS  FOR  PUBLICATION. 
[Case.] 
To  Vernon  Deaf,  Greeting: 

In  the  name  of  the  state  of  Washington,  you  are 
hereby  notified  that  James  Words  has  filed  a  complaint 
against  you  in  said  court,  which  will  come  on  to  be  heard 
at  my  office,  in  room  602,  Prefontaine  Building,  in  the 
city  of  Seattle,  King  County,  state  of  Washington,  on 
the  3d  day  of  January,  1912,  at  the  hour  of  9:30  o'clock 
in  the  forenoon  of  said  day,  and  unless  you  appear  and 
then  and  there  answer,  the  same  will  be  taken  as  con- 
fessed, and  the  demand  of  the  plaintiff  granted. 

The  object  of  said  complaint  is  to  recover  [state  gen- 
erally the  demand]. 

Complaint  filed  December  12,  1911. 

R.  R.  GEORGE, 
Justice  of  the  Peace. 


TAKING  THE   CAUSE  INTO   COURT.  33 

§  67.    HOW  WEEKLY  PUBLICATION  IS  MADE. 

The  publication  of  legal  notices  required  by  law,  or 
by  an  order  of  a  judge  or  court,  to  be  published  in  a 
newspaper  once  in  each  week  for  a  specified  number 
of  weeks,  shall  be  made  on  the  day  of  each  week  in 
which  such  newspaper  is  published.  [253.] 

FORM. 
AFFIDAVIT  OF  PUBLICATION. 

State  of  Washington,  etc. 

I,  James  Inker,  on  oath  declare  that  I  am  the  pub- 
lisher [printer,  or  foreman]  of  the  "Broken  Bugle," 
a  weekly  newspaper  published  in  King  County,  Wash- 
ington, and  of  general  circulation  in  said  county;  and 
that  the  summons,  of  which  the  annexed  is  a  printed 
copy,  was  published  in  said  newspaper  three  tunes  con- 
'  secutively  for  three  successive  weeks ;  that  the  first  pub- 
lication thereof  was  made  on  the day  of , 

and  the  last  publication  was  made  on  the  ....  day  of 


Signature. 

§  68.     SHEEIFFS,    CONSTABLES,    AND    OTHER    PER- 
SONS. 

Sheriffs  and  constables  are  officers  authorized  by  law 
to  serve  process  or  complaint  and  notices,  yet  it  is  provided 
that  service  may  be  made  of  summons  or  notice  and  com- 
plaint as  follows: 

but  a  summons  or  notice  and  complaint 

may  be  served  by  any  citizen  of  the  state  of  Washing- 
ton over  the  age  of  twenty-one  years  and  not  a  party 
to  the  action. 

§  69.    MANNER  OF  SERVICE. 

The  summons  or  notice  and  complaint  shall  be  served 
by  delivering  a  copy  thereof,  as  follows: 

1.  If  the  action  be  against  any  county  in  this  state, 
to  the  county  auditor. 

2.  If  against  any  town  or  incorporated  city  in  the 
state,  to  the  mayor  thereof; — 

3.  if  against  a  school  district,  to  the  clerk  thereof; 
3 


34  JUSTICE  OF  THE  PEACE  GUIDE. 

4.  If  against  a  railroad  corporation,  to  any  station, 
freight,    ticket    or    other    agent    thereof    within    the 
county ; 

5.  If   against   a   corporation   owning   or   operating 
sleeping-cars,  or  hotel  cars,  to  any  person  having  charge 
of  any  of  its  cars  or  any  agent  found  within  the  county; 

6.  If  against  an  insurance  company,  to  any  agent, 
authorized  by  such  company  to  solicit  insurance  within 
this  state. 

7.  If  against  a  company  or  corporation  doing  any 
express  business,  to  any  agent  authorized  by  said  com- 
pany or  corporation  to  receive  and  deliver  express  mat- 
ters and  collect  pay  therefor  within  this  state; 

8.  If  the  suit  be  against  a  company  or  corporation 
other  than  those  designated  in  the  preceding  subdi- 
visions of  this  section,  to  the  president  or  other  head 
of  the  company  or  corporation,  secretary,  cashier  or 
managing  agent  thereof; 

9.  If  the  suit  be  against  a  foreign  corporation  or 
nonresident  joint  stock  company  or  association  doing 
business  within  this  state,  to  any  agent,  cashier  or  sec- 
retary thereof; 

10.  If  against  a  minor  under  the  age  of  fourteen 
years,  to  such  minor  personally,  and  also  to  his  father, 
mother,  guardian,  or  if  there  be  none  within  this  state, 
then  to  any  person  having  the  care  or  control  of  such 
minor,  or  with  whom  he  resides,  or  in  whose  service  he 
is  employed,  if  such  there  be; 

11.  If  against  any  person  for  whom  a  guardian  has 
been  appointed  for  any  cause,  then  to  such  guardian; 

12.  Whenever  any  domestic  or  foreign  corporation, 
which  has  been  doing  business  in  this  state,  has  been 
placed  in  the  hands  of  a  receiver  and  the  receiver  is 
in  possession  of  any  of  the  property  or  assets  of  such 
corporation,  service  of  all  process  upon  such  corpora- 
tion may  be  made  upon  the  receiver  thereof; 

13.  In  all  other  cases,  to  the  defendant  personally, 
or  by  leaving  a  copy  of  the  summons  or  complaint  and 
notice  at  his  place  of  abode  as  specified  in  sections 
three  hundred  and  fifty-four  and  three  hundred  and 
fifty-six.    Service  made  in  the  modes  provided  in  this 
section  shall  be  taken  and  held  to  be  personal  service. 
[226.] 


TAKING  THE   CAUSE  INTO   COURT.  35 

§  70.     CERTIFIED  COPY. 

The  defendant  must  be  served  with  a  certified  copy  of 
the  complaint  and  notice,  and  the  certification  of  the  per- 
son serving  such  complaint  and  notice  should  appear  on 
the  defendant's  copy. 

§  71.    SERVICE  WHEN  THERE  ARE  TWO  OR  MORE 
DEFENDANTS. 

The  following  provisions  apply  to  cases  where  there  are 
two  or  more  defendants,  and  also  when  summons  is  served 
on  one  or  more  but  not  on,  all  of  them: 

1.  If  the  action  is   against  defendants  jointly  in- 
debted upon  a  contract,  he  (the  plaintiff)  may  proceed 
against  the  defendants  served  unless  the  court  other- 
wise directs;  and  if  he  recovers  judgment  it  may  be 
entered  against  all  the  defendants  thus  jointly  indebted 

'  so  far  only  as  it  may  be  enforced  against  the  joint  prop- 
erty of  all  and  the  separate  property  of  the  defendants 
served; 

2.  If  the  action  is  against  defendants  severally  liable 
he  may  proceed  against  the  defendants  served  in  the 
same  manner  as  if  they  were  the  only  defendants; 

3.  Though   all   of  the   defendants  may   have   been 
served  with  the   summons,   judgment  may  be  taken 
against  any  of  them  severally,  when  the  plaintiff  would 
be  entitled  to  judgment  against  such  defendants  if  the 
action  had  been  against  them  alone.     [236.] 

§  72.    THE  RETURN  OF  PROCESS  AND  PROOF  OF  SER- 
VICE—PENALTY. 

The  server,  whether  he  be  sheriff,  constable  or  unofficial 
but  qualified  person,  having  served  the  defendant  in  ac- 
cordance with  law,  or  publication  of  notice  having  been 
made  in  some  weekly  newspaper,  the  agent  making  such 
service  makes  his  return  as  follows: 

Every  constable  or  sheriff  serving  any  process  or 
complaint  and  notice,  shall  return  thereon  in  writing 
the  time,  manner  and  place  of  service,  and  indorse 
thereon  the  legal  fees  therefor,  and  shall  sign  his  name 
to  such  return.  [1763.] 

If  any  officer,  without  showing  good  cause  therefor, 
fail  to  execute  any  process  to  him  delivered,  and  make 


36  JUSTICE  OP  THE  PEACE  GUIDE. 

due  return  thereof,  or  make  a  false  return,  such  offi- 
cer, for  every  such  offense,  shall  pay  to  the  party  in- 
jured ten  dollars,  and  all  damage  such  party  may  have 
sustained  by  reason  thereof,  to  be  recovered  in  a  civil 
action.  [1776.] 

§  73.    HOW  SEEVICE  IS  PROVED. 

When  the  person  to  whom  process  or  complaint  and 
notice  has  been  delivered,  to  be  served  upon  the  defendant, 
shall  have  made  his  service  as  set  forth  in  the  above  stat- 
utes, he  shall  make  proof  of  the  fact  of  such  service  in  the 
following  ways: 

1.  When  made  by  a  constable  or  sheriff,  his  return 
signed  by  him  and  indorsed  on  the  paper  or  process ; 

2.  When  made  by  any  person  other  than  such  offi- 
cer, then  by  the  affidavit  of  the  person  making  the  ser- 
vice.   [1765.] 

3.  Proof  of  service  in  case  of  publication  shall  be 
the  affidavit  of  the  publisher,  printer,  foreman  or  prin- 
cipal clerk,  showing  the  same,  and    [1767.] 

4.  The  written  admission  of  the  defendant,  his  agent 
or  attorney,  indorsed  upon  any  summons,  complaint 
and  notice,  or  other  paper,  shall  be  complete  proof  of 
service  in  any  case.    [1768.] 

FORM. 
RETURN  OP  SERVICE  BY  OFFICER. 

State  of  Washington,  etc. 

I  hereby  certify  and  return  that  the  within  summons 
[or  complaint  and  notice]  came  to  my  hands  on  the 
4th  day  of  December,  1911,  and  that  thereafter  on  the 
4th  day  of  December,  1911, 1  served  the  same  by  deliver- 
ing to  and  leaving  with  Jonathan  Quibble,  the  defend- 
ant named  therein,  at  the  city  of  Seattle,  in  said  county, 
a  full,  true  and  correct  copy  of  said  summons  [or  com- 
plaint and  notice],  duly  certified  by  me  to  be  such. 

Dated  this  5th  day  of  December,  1911. 

HENRY  BADGE, 
Constable. 

Service   $.60 

Copy 20 

Mileage  2  miles 20 

Total $1.00 


TAKING   THE  CAUSE  INTO   COURT.  37 

RETURN  OP  APPOINTED  SERVES. 

State  of  Washing-ten,  etc. 

H.  Willing,  of  King  County,  state  of  Washington, 
being  first  duly  sworn,  says  that  the  within  summons  [or 
complaint  and  notice]  came  to  his  hands  on  the  4th  day 
of  December,  1911,  and  that  thereafter  and  on  the  4th 
day  of  December,  1911,  I  served  the  same  by  delivering 
to  and  leaving  with  Jonathan  Quibble,  the  defendant 
therein  named,  at  the  city  of  Seattle,  in  said  county,  a 
full,  true  and  correct  copy  of  said  summons  [or  com- 
plaint and  notice]  duly  certified  by  me  to  be  such;  and 
that  his  fees  for  the  said  service  are  as  follows,  to  wit: 
Service  on  one  defendant,  60c,  and  six  miles'  travel,  60c. 

H.  WILLING. 

RETURN  BY  OFFICER  WHEN  DEFENDANT   NOT 
SERVED. 

State  of  Washington,  etc. 

I  hereby  certify  and  return  that  the  within  summons 
[notice  and  complaint]  came  to  my  hands  on  the  4th 
day  of  December,  1911,  and  that  thereafter  on  the  4th 
day  of  December,  1911,  I  served  the  same  by  leaving  a 
true  copy  thereof,  certified  by  me  to  be  such,  at  his  place 
of  abode  in  said  county  with  one  Annie  Board,  a  person 
over  twelve  years  of  age ,  defendant  not  being  found. 

Dated  this  5th  day  of  December,  1911. 

HENRY  BADGE, 

Constable. 
Fees: 

Service   $  .60 

Copying    40 

Mileage  2  miles 20 


Total $1.20 

RETURN  OF  SERVICE— NOT  FOUND. 

State  of  Washington,  etc. 

I  hereby  certify  that  the  within  summons  [or  com- 
plaint and  notice]  came  to  my  hands  on  the  4th  day  of 
December,  1911,  and  that  I  made  diligent  search  and 
inquiry  for  the  within  named  defendant,  Jonathan 
Quibble,  in  the  county  of  King  and  state  of  Washington, 
but  was  unable  to  find  him,  and  could  not  ascertain, 
after  diligent  search  and  inquiry,  that  he  had  a  place 


38  JUSTICE  OP  THE  PEACE  GUIDE. 

of  abode  in  said  county,  and  for  that  reason  I  return 
this  summons  not  served. 
Dated  this  4th  day  of  December,  1911. 

HENRY  BADGE, 

Constable. 

SERVICE  ON  CORPORATION  AND  RAILROAD. 

Add:  "By  delivering  a  true  copy  thereof,  certified  by 
me  to  be  such,  to  Thomas  Mint,  the  president  [or  what 
his  official  title  may  be]  thereof." 

For  a  municipal  corporation  add:  "The  mayor  of  said 
city  [or  what  the  proper  officer  may  be]." 

For  a  railroad:  "Percy  Punch,  the  acting  station 
agent  of  such  railroad  company,  the  defendant,  in  said 
county  and  state,  etc. ' ' 

§  74.    RULES  ADOPTED  BY  KING  COUNTY  JUSTICES. 

The  following  rules  will  be  rigorously  enforced  on  and 
after  November  1,  1911,  in  the  justice  courts  of  Seattle 
Precinct,  King  County,  Washington : 

I. 

Parties  must  be  ready  in  all  cases  set  for  trial  or 
cases  will  be  dismissed.  Exceptions  will  be  made  where 
the  parties  or  their  attorneys  are  engaged  in  a  trial  in 
the  superior  court,  in  which  event  an  affidavit  to  that 
effect  must  be  filed  on  or  before  9 :30  A.  M.  on  the  day 
on  which  the  said  cases  are  set  for  trial. 

n. 

In  all  cases  in  which  there  is  no  appearance  by  the 
plaintiff  or  his  attorney  at  9:30  A.  M.  or  within  one 
hour  thereafter,  an  order  of  dismissal  will  be  entered. 

HI. 

Proof  of  service  in  all  default  cases  must  be  on  file 
by  10:30  A.  M.  on  the  return  day  of  the  notice,  or  a 
dismissal  will  be  entered. 

§  75.  OTHER  METHODS  OF  COMMENCING  ACTIONS. 
Civil  actions  in  the  several  justices'  courts  of  this 
state  may  be  instituted  either  by  the  voluntary  appear- 
ance and  agreement  of  the  parties,  by  the  service  of  a 
summons,  or  by  the  service  upon  the  defendant  of  a 
true  copy  of  the  complaint  and  notice,  which  notice 


TAKING  THE   CAUSE  INTO  COUET.  39 

shall  be  attached  to  the  copy  of  the  complaint,  and  cite 
the  defendant  to  be  and  appear  before  the  justice  at 
the  time  and  place  therein  specified,  which  shall  not 
be  less  than  six  nor  more  than  twenty  days  from  the 
date  of  filing  the  complaint.  [1755.] 

§  76.    ACTION  COMMENCED  BY  SUMMONS. 

A  party  desiring  to  commence  an  action  before  a  jus- 
tice of  the  peace  for  the  recovery  of  a  debt  by  sum- 
mons shall  file  his  claim  with  the  justice  of  the  peace, 
verified  by  his  own  oath,  or  that  of  his  agent  or  attor- 
ney; and  thereupon  the  justice  of  the  peace  shall,  on 
payment  of  his  fees,  if  demanded,  issue  a  summons  to 
the  opposite  party,  which  summons  shall  be  in  the  fol- 
lowing form,  or  as  nearly  as  the  case  will  admit,  viz. : 

FORM. 

The  State  of  Washington, 

County, — s&. 

To  the  Sheriff  or  Any  Constable  of  Said  County. 
In  the  name  of  the  state  of  Washington,  you  are 

hereby  commanded  to  summon if  he  [or  they] 

be  found  in  your  county,  to  be  and  appear  before  me 

at on day  of at o'clock  A. 

M.  [or  P.  M.],  to  answer  the  complaint  of for 

a  failure  to  pay  him  a  certain  demand,  amounting  to 

dollars   and    cents,    upon    [here   state 

briefly  the  nature  of  the  claim] ;  and  of  this  writ  make 
due  service  and  return. 

Given  under  my  hand  this   day  of   , 

19.. 


Justice  of  the  Peace. 

And  the  summons  shall  specify  a  certain  place,  day, 
and  hour  for  the  appearance  and  answer  of  the  defend- 
ant, not  less  than  six  nor  more  than  twenty  days  from 
the  date  of  filing  plaintiff's  claim  with  the  justice, 
which  summons  shall  be  served  at  least  five  days  before 
the  time  of  trial  mentioned  therein,  and  shall  be  served 
by  the  officer  delivering  to  the  defendant,  or  leaving 
at  his  place  of  abode,  with  some  person  over  twelve 
years  of  age,  a  true  copy  of  such  summons,  certified  by 
the  officer  to  be  such.  [1758.] 

The   general   method   of   commencing   an   action   in   the 
justice  court  is  by   complaint  and  notice;  the   complaint 


40  JUSTICE  OF  THE  PEACE  GUIDE. 

being  prepared  as  set  forth,  under  the  heading  of  the  "Com- 
plaint." 

§  77.    ACTION    COMMENCED    BY    COMPLAINT    AND 
NOTICE. 

Any  person  desiring  to  commence  an  action  before  a 
justice  of  the  peace  by  the  service  of  a  complaint  and 
notice  can  do  so  by  filing  his  complaint,  verified  by  his 
own  oath  or  that  of  his  agent  or  attorney,  with  the  jus- 
tice, and  when  such  complaint  is  so  filed,  upon  payment 
of  his  fees,  if  demanded,  the  justice  shall  attach  thereto 
a  notice  which  shall  be  substantially  as  follows : 

FORM. 

The  State  of  Washington, 
County, — ss. 

To  ......... 

In  the  name  of  the  state  of  Washington,  you  are 

hereby  notified  to  be  and  appear  at  my  office  in 

on  the day  of  ,  19 ,  at  the  hour  of 

M.,  to  answer  the  foregoing  complaint,  or 

judgment  will  be  taken  against  you  as  confessed,  and 
the  prayer  of  the  plaintiff  granted. 

Dated  .  .19.. 


J.  P.     [1759.] 

§  78.    THE  DEFENDANT'S  ANSWER,  ETC. 

The  complaint  has  been  drawn  and  filed,  the  copy  and 
notice  have  been  served  on  the  defendant  in  one  of  the  ways 
specified  in  the  preceding  chapter,  and  it  is  now  time  for 
the  defendant  to  meet  the  attack. 

§  79.    WHEN  THE  DEFENDANT  IS  IN  DEFAULT. 

First  of  all,  we  will  assume  that  the  defendant  refuses 
to  obey  the  notice  and  decides  to  allow  the  plaintiff's  action 
to  take  its  course.  He  refuses  to  make  any  appearance  or 
serve  and  file  any  pleadings  in  the  case.  He  is  therefore 
liable  to  have  judgment  rendered  against  him  as  confessed. 

When  the  defendant  fails  to  appear  and  plead  at  the 
time  specified  in  the  notice,  or  within  one  hour  there- 
after, judgment  shall  be  given  as  follows: — 


TAKING   THE   CAUSE  INTO   COUBT.  41 

1.  When  the  defendant  has  been  served  with  a  true 
copy  of  the  complaint,  judgment  shall  be  given  without 
further  evidence  for  the  sum  specified  therein; 

2.  In  other  cases,  the  justice  shall  hear  the  evidence 
of  the  plaintiff,  and  render  judgment  for  such  sum  only 
as  shall  appear  by  the  evidence  to  be  just,  but  in  no  case 
exceed  the  amount  specified  in  the  complaint.    [1858.] 

In  taking  the  defendant's  default,  particular  notice  should 
be  paid  to  the  rules  adopted  by  the  King  County  justices 
set  forth  in  the  preceding  chapter. 

FORM. 
JUDGMENT  ON  DEFAULT. 

August  1st,  1910,  at  9:30  o'clock  A.  M.,  the  case  being 
called,  plaintiff  appeared,  but  defendant  did  not  appear 
,  within  one  hour  after  the  time  specified  in  the  summons. 
Plaintiff  testified  in  his  own  behalf  under  bath.  Case 
rested.  Whereupon,  it  is  adjudged  this  1st  day  of  Au- 
gust, 1910,  that  the  plaintiff  recover  of  the  defendant 
the  sum  of  ten  dollars,  his  damages  as  confessed  [or 
proven]  and  costs  of  this  action  incurred,  taxed  at  $7 
and  $5  attorney's  fees,  making  a  total  judgment  against 
the  defendant  of  twenty-two  dollars. 

J  P. 

§  80.    THE  DISMISSAL  OF  THE  ACTION. 

If  the  dispute  has  been  settled  before  the  return  day,  the 
case  may  be  dismissed.  Usually  in  the  settlement  of  the 
case  the  plaintiff  will  demand  his  costs,  that  is,  the  filing  fee 
of  one  dollar;  the  cost  of  service,  treated  of  under  the  head 
of  "Costs,"  and  the  statutory  attorney's  fee  of  five  dollars. 

Judgment  that  the  action  be  dismissed,  without 
prejudice  to  a  new  action,  may  be  entered,  with  costs, 
in  the  following  cases : — 

1.  When  the  plaintiff  voluntarily  dismisses  the  action 
before  it  is  finally  submitted; 

2.  When  he  fails  to  appear  at  the  time  specified  in  the 
notice,  upon  continuance,  or  within  one  hour  thereafter ; 

3.  When  it  is  objected  at  the  trial,  and  appears  by 
the  evidence,  that  the  action  is  brought  in  the  wrong 
county;  but  if  the  objection  be  taken  and  overruled,  it 
shall  be  cause  only  of  reversal  or  appeal;  if  not  taken 
at  the  trial,  it  shall  be  deemed  waived,  and  shall  not  be 
cause  of  reversal.     [857.] 


42  JUSTICE  OP  THE  PEACE  GUIDE. 

In  every  case  other  than  those  wherein  judgment  of  dis- 
missal is  rendered,  the  judgment  shall  be  rendered  on  the 
merits. 

FORM. 
JUDGMENT  ON  DISMISSAL. 

[State  here  that  plaintiff  has  failed  to  appear,  or 
that  he  has  dismissed  the  case,  etc.] 

Wherefore,  it  is  adjudged  this  1st  day  of  August, 
1010,  that  this  action  be  dismissed  without  prejudice 
to  the  plaintiff  to  bring  a  new  action  for  the  same  cause, 
and  that  the  defendant  have  and  recover  of  the  plaintiff 
his  costs  in  this  action  taxed  at  seven  dollars. 

J  P. 

§  81.  THE  DEFENDANT'S  APPEARANCE. 

Let  us  assume,  however,  that  the  defendant  decides  to  con- 
test the  action.  On  the  return  day,  he  will  make  what  is 
called  the  appearance  in  person  or  by  attorney.  Previously 
to  the  return  date,  however,  he  will  be  said  to  appear  in  the 
action  when  he  answers  or  demurs  or  gives  the  plaintiff  writ- 
ten notice  of  his  appearance. 

A  defendant  appears  in  an  action  when  he  answers, 
demurs,  makes  an  application  for  an  order  therein,  or 
gives  the  plaintiff  written  notice  of  his  appearance. 
After  appearance  a  defendant  is  entitled  to  notice  of 
all  subsequent  proceedings;  but  when  a  defendant  has 
not  appeared,  service  of  notice  or  papers  in  the  ordinary 
proceedings  in  an  action  need  not  be  made  upon  him. 
Every  such  appearance  made  in  an  action  shall  be 
deemed  a  general  appearance,  unless  the  defendant  in 
making  the  same  states  that  the  same  is  a  general  ap- 
pearance. [241.] 

The  parties  shall  be  entitled  to  one  hour  in  which  to 
make  their  appearance  after  the  time  mentioned  in  the 
summons  or  notice  for  appearance,  but  shall  not  be  re- 
quired to  remain  longer  than  that  time,  unless  both  par- 
ties appear,  and  the  justice,  being  present,  is  actually 
engaged  in  the  trial  of  another  action  or  proceeding; 
in  such  case  he  may  postpone  the  time  of  appearance 
until  the  close  of  such  trial.  [1773.] 

§  82.    THE  SPECIAL  APPEARANCE 

Is  an  appearance  made  to  take  advantage  of  any  defect  or 
defects ;  as,  for  instance,  the  want  of  jurisdiction.  This  is  an. 


TAKING   THE   CAUSE  INTO   COURT.  43 

appearance  that  must  be  made  carefully  and  with  the  distinct 
understanding  that  it  is  a  special  appearance,  and  must  be 
properly  made  as  to  form,  or  it  will  react  on  the  party  to 
give  the  court  jurisdiction. 

The  defendant  having  appeared  generally,  the  justice  will 
then  set  the  case  down  for  trial,  the  time  of  trial  being  de- 
termined by  the  number  of  cases  ahead  of  any  given  one. 

§  83.    THE  CONTINUANCE. 

The  necessity  of  procuring  certain  evidence  may  compel  the 
defendant  to  ask  that  the  cause  be  continued  until  such  time 
as  he  can  get  the  desired  witness  into  court  or  else  take  his 
deposition.  Or  there  may  be  other  good  cause  for  continu- 
ance, in  which  case  a  continuance  fee  of  twenty-five  cents 
shall  be  paid  to  the  clerk  of  the  court.  But  the  limit  of  such 
continuance  shall  be  sixty  days.  A  continuance  for  more  than 
sixty  days  will  devest  the  justice  of  jurisdiction. 

When  the  pleadings  of  the  parties  shall  have  taken 
place  the  justice  shall,  upon  the  application  of  either 
party  if  the  defendant  be  not  under  arrest,  and  sufficient 
cause  be  shown  on  oath,  continue  the  case  for  any  time 
not  exceeding  sixty  days.  If  the  continuance  be  on 
account  of  absence  of  testimony,  it  shall  be  for  such 
reasonable  time  as  will  enable  the  party  to  procure  such 
testimony,  and  shall  be  at  the  cost  of  the  party  applying 
therefor,  unless  otherwise  ordered  by  the  justice;  and 
in  all  other  respects  shall  be  governed  by  the  law  ap- 
plicable to  continuances  in  the  superior  court.  [1847.] 

§  84.    CONTINUANCE     BY    AGREEMENT     OF      THE 
PARTIES. 

A  continuance  for  more  than  sixty  days  will  not  operate 
to  devest  the  justice  of  jurisdiction,  if  the  continuance  is 
made  on  the  agreement  of  the  parties  and  the  docket  so  shows. 

§  85.    AMENDMENTS  GENERALLY. 

The  pleadings  may  be  amended  at  any  time  before  the 
trial,  or  during  the  trial,  or  upon  appeal,  to  supply  any 
deficiency  or  omissions  in  the  allegations  or  denials 
necessary  to  support  the  action  or  defense,  when  by 
such  amendment  substantial  justice  will  be  promoted. 
If  the  amendment  be  made  after  the  issue,  and  it  be 
made  to  appear  to  the  satisfaction  of  the  court  that  a 


44  JUSTICE  OF  THE  PEACE  GUIDE. 

continuance  is  necessary  to  the  adverse  party  in  conse- 
quence of  such  amendment,  a  continuance  shall  be 
granted.  The  court  may  also,  in  its  discretion,  require 
as  a  condition  of  an  amendment  the  payment  of  costs 
to  the  adverse  party.  [1788.] 

§  86.  THE  ANSWER  OF  THE  DEFENDANT. 

We  have  seen  that  the  pleadings  in  the  justice  court  shall 
consist  of  the  complaint,  the  answer  and  the  reply.  Let  us 
consider,  now,  the  answer  of  the  defendant. 

Remember  that  the  pleadings  may  be  either  spoken  or  writ- 
ten, so  that,  if  you  are  the  defendant,  it  is  not  necessary  for 
you  to  write  out  your  answer.  You  may  come  into  court  on 
the  return  day  and  simply  say  that  the  answer  is  a  general 
denial.  When  you  have  any  facts  which  it  is  necessary  to 
set  forth  at  length  by  way  of  setoff  or  counterclaim,  it  is  ex- 
pedient to  make  the  answer  then  in  writing. 

The  answer  of  the  defendant  which  may  contain  a 
denial  of  the  complaint,  or  any  part  thereof,  and  also 
a  statement  in  a  plain  and  direct  manner  of  any  facts 
constituting  a  defense.  [1779.] 

§  87.    THE  DENIAL. 

The  denial  may  go  to  each  and  every  allegation  of  the  plain- 
tiff's complaint,  thus  putting  the  plaintiff  on  his  proof  of 
each  separate  statement.  This  is  a  denial  of  the  complaint; 
or  the  denial  may  be  specifically  made  to  some  material  alle- 
gation or  allegations  of  the  complaint. 

The  common  form  of  the  denial  is  as  follows: 

"The  defendant,  for  answer  to  the  complaint  of  the 
plaintiff,  denies  each  and  every  allegation  thereof." 

§  88.    DENIAL  OF  KNOWLEDGE  OR  INFORMATION. 

The  defendant  may  answer  an  allegation  by  denying  that 
he  has  knowledge  or  information  sufficient  to  form  a  belief 
concerning  the  truth  thereof.  [1782.] 

The  answer  must  be  verified  by  the  defendant  or  his  attorney 
in  form  similar  to  the  verification  of  the  complaint. 


TAKING   THE   CAUSE  INTO   COURT.  45 

§  89.    UNDENTED         ALLEGATIONS       ADMITTEDLY 
TEUE. 

It  is  a  rule  founded  upon  reason  and  logic  that  those  ma- 
terial allegations  of  the  complaint  which  the  defendant  does 
not  deny  are  by  his  pilence  admitted  as  true. 

Every  material  allegation  of  the  complaint,  or  relat- 
ing to  a  setoff  in  the  answer  not  denied  by  the  pleading 
of  the  adverse  party,  shall,  on  the  trial,  be  taken  to  be 
true;  except  that  when  a  defendant  who  has  not  been 
served  with  a  copy  of  the  complaint  fails  to  appear  and 
answer,  the  plaintiff  cannot  recover  without  proving  his 
case.  [1785.] 

§  90.    GENERAL  RULES  GOVERNING  THE  PRECED- 
ING PLEADINGS— AMENDMENTS. 

The  pleadings  may  be  amended  at  any  time  before  the 
,  trial,  or  during  the  trial,  or  upon  appeal,  to  supply  any 
deficiencies  or  omissions  in  the  allegations  or  denials 
necessary  to  support  the  action  or  defense,  when  by 
such  amendment  substantial  justice  will  be  promoted. 
If  the  amendment  be  made  after  the  issue,  and  it  be 
made  to  appear  to  the  satisfaction  of  the  court  that  a 
continuance  is  necessary  to  the  adverse  party  in  conse- 
quence of  such  amendment,  a  continuance  shall  be 
granted.  The  court  may  also,  in  its  discretion,  require 
as  a  condition  of  an  amendment  the  payment  of  costs 
to  tiie  adverse  party. 

§  91.    FILING  AMENDED  PLEADINGS. 

When  leave  has  been  granted  to  amend  the  pleadings,  the 
next  step  is  to  draw  a  new  complaint  or  pleading,  as  the  case 
may  be,  and  filing  that.  Ths  case  will  then  be  determined 
upon  the  new  and  not  upon  the  old  pleading. 

When  any  pleading  or  proceeding  is  amended  before 
trial,  mere  clerical  errors  excepted,  it  shall  be  done  by 
filing  a  new  pleading,  to  be  called  the  amended  com- 
plaint, or  otherwise,  as  the  case  may  be.  Such  amended 
pleading  shall  be  complete  in  itself,  without  reference 
to  the  original,  or  any  preceding  amended  one.  [304.] 

§  92.    VARIANCE  BETWEEN  THE  PLEADINGS  AND 
THE  PROOF. 

It  frequently  happens  that  the  pleader  in  drawing  his 
pleadings  will  not  have  understood  thoroughly  some  of  the 


46  JUSTICE  OP  THE  PEACE  GUIDE. 

details  of  the  cause,  with  the  result  that  when  the  witness  is 
placed  on  the  stand  his  evidence  does  not  coincide  with  his 
sworn  complaint.  The  aim  of  the  court  being  to  ascertain 
the  truth,  and  it  being  more  likely  that  the  story  told  by  the 
witness  under  examination  and  personally  in  the  courtroom 
is  true  as  against  some  difference  in  his  pleadings,  the  effect 
will  not  be  to  brand  the  whole  complaint  or  answer  or  what- 
ever the  pleading  as  wholly  false;  but  it  is  held  not  to  be 
material.  This  rule  is  modified  to  the  extent  that  the  adverse 
party  may  not  be  prejudiced  or  misled  by  such  variance. 
That  is  to  say,  he  is  not  to  be  told  one  story  in  the  complaint 
and  then  when  he  has  prepared  his  whole  case  to  meet  that 
attack,  find  on  the  trial  that  the  plaintiff  departs  entirely  from 
the  pleadings  and  leaves  the  defendant  without  adequate  re- 
ply. In  such  a  case  the  defendant  is  properly  granted  a  con- 
tinuance to  meet  the  new  change  of  attack.  Or,  if  that  be 
not  done,  and  it  be  really  more  than  a  case  of  variance,  it 
shall  be  deemed  a  failure  of  proof. 

§  93.    IMMATERIAL  VARIANCE. 

A  variance  between  the  proof  on  the  trial  and  the 
allegations  in  a  pleading  shall  be  disregarded  as  imma- 
terial, unless  the  court  be  satisfied  that  the  adverse 
party  has  been  misled  to  his  prejudice  thereby.  [1787.] 

§  94.    PRACTICE  IN  CASE  OF  VARIANCE. 

When  the  variance  is  not  material,  as  provided  in  the 
last  section,  the  court  may  direct  the  fact  to  be  found 
according  to  the  evidence,  or  may  order  an  immediate 
amendment  without  costs.  [300.] 

§  95.    FAILURE  TO  PROVE. 

When,  however,  the  allegation  of  the  cause  of  action 
or  defense,  to  which  the  proof  is  directed,  is  not  proved, 
not  in  some  particular  or  particulars  only,  but  in  its 
entire  scope  and  meaning,  it  shall  not  be  deemed  a  case 
of  variance  within  the  last  two  sections,  but  a  failure 
of  proof.  [301.] 

§  96.    AMENDMENTS  GENERALLY. 

The  statute  covering  amendments  generally  is  as  follows : 

The  court  may,  in  furtherance  of  justice,  and  on  such 
terms  as  may  be  proper,  amend  any  pleadings  or  pro- 


TAKING  THE   CAUSE  INTO   COURT.  47 

ceedings  by  adding  or  striking  out  the  name  of  any 
party,  or  by  correcting  a  mistake  in  the  name  of  a  party, 
or  a  mistake  in  any  other  respect,  and  may  upon  like 
terms,  enlarge  the  time  for  answer  or  demurrer.  The 
court  may  likewise,  upon  affidavit  showing  good  cause 
therefor,  after  notice  to  the  adverse  party,  allow  upon 
such  terms  as  may  be  just,  an  amendment  to  any  plead- 
ings or  proceedings  in  other  particulars,  and  may  upon 
like  terms,  allow  an  answer  to  be  made  after  the  time 
limited  by  this  code,  and  may  upon  such  terms  as  may 
be  just,  and  upon  payment  of  costs,  relieve  a  party,  or 
his  legal  representatives,  from  a  judgment,  order  or 
other  proceeding  taken  against  him  through  his  mistake, 
inadvertence,  surprise  or  excusable  neglect.  [303.] 

§  97.    SETOFFS. 

In  many  cases  the  pleadings  are  not  so  simple  that  they 
cai>  be  mere  matters  of  affirmation  and  denial.  Frequently 
a  case  will  grow  out  of  complicated  transactions  between  the 
plaintiff  and  the  defendant  wherein  both  parties  have  been 
indebted  each  to  the  other.  The  plaintiff  may  be  suing  the 
defendant  on  a  promissory  note  of  twenty-five  dollars  and 
the  defendant  may  be  the  plaintiff's  creditor  on  an  open  ac- 
count to  the  amount  of  fifty  dollars.  The  defendant,  admit- 
ting the  note,  will  ask  cancellation  and  judgment  for  twenty- 
five  dollars  and  costs. 

To  entitle  a  defendant  to  any  setoff  he  may  have 
against  the  plaintiff,  he  must  allege  the  same  in  his 
answer;  and  the  statutes  regulating  setoffs  in  the  su- 
perior court  shall  in  all  respects  be  applicable  to  setoffs 
in  a  justice's  court,  if  the  amount  claimed  to  be  set  off, 
after  deducting  the  amount  found  due  the  plaintiff,  be 
within  the  jurisdiction  of  the  justice  of  the  peace ;  judg- 
ment may,  in  like  manner,  be  rendered  by  the  justice, 
in  favor  of  the  defendant,  for  the  balance  found  due 
the  plaintiff.  [1789.] 

§  98.    COUNTERCLAIMS. 

When  the  defendant  has  a  cause  of  action  which  springs 
from  the  transaction  on  which  the  plaintiff  founds  his  action, 
and  in  which  said  action  the  defendant  might  himself  ask  for 
affirmative  relief,  he  is  said  to  have  a  counterclaim. 


48  JUSTICE  OP  THE  PEACE  GUIDE. 

However,  the  terms  "setoff"  and  "counterclaim,"  although 
technically  distinct,  are  often  used  interchangeably. 

The  counterclaim  ....  must  be  one  existing  in  favor 
of  a  defendant  and  against  a  plaintiff,  between  whom 
a  several  judgment  might  be  had  in  the  action,  and 
arising  out  of  the  following  causes  of  action: 

1.  A  cause  of  action  arising  out  of  the  contract  or 
transaction  set  forth  in  the  complaint  as  the  foundation 
of  the  plaintiff's  claim,  or  connected  with  the  subject 
of  the  action; 

2.  In  an  action  arising  on  contract,  any  other  cause  of 
action  arising  also  on  contract,  and  existing  at  the  com- 
mencement of  the  action.    [265.] 

§  99.     SETOFFS  GENERALLY. 

The  following  is  a  general  statement: 

The  defendant  in  a  civil  action  upon  a  contract  ex- 
pressed or  implied  may  set  off  any  demand  of  a  like 
nature  against  the  plaintiff  in  interest  which  existed  and 
belonged  to  him  at  the  time  of  the  commencement  of 
the  suit.  And  in  all  such  actions,  other  than  upon  a 
negotiable  promissory  note  or  bill  of  exchange  negoti- 
ated in  good  faith,  and  without  notice  before  due,  which 
has  been  assigned  to  the  plaintiff,  he  may  also  set  off 
a  demand  of  a  like  nature  existing  against  the  person  to 
whom  he  was  originally  liable,  or  any  assignee  prior 
to  the  plaintiff  of  such  contract,  provided  such  demand 
existed  at  the  time  of  the  assignment  thereof,  and  be- 
longing to  the  defendant  in  good  faith  before  notice  of 
such  assignment,  and  was  such  a  demand  as  might  have 
been  set  off  against  such  person  to  whom  he  was  orig- 
inally liable,  or  such  assignee  while  the  contract  be- 
longed to  him.  [266.] 

§  100.    ALLOWING  SETOFF. 

When  the  setoff  of  the  defendant  proved  shall  exceed 
the  claim  of  the  plaintiff,  and  such  excess  in  amount 
exceed  the  jurisdiction  of  a  justice  of  the  peace,  the 
court  shall  allow  such  amount  as  is  necessary  to  cancel 
the  plaintiff's  claim,  and  give  the  defendant  a  jadgment 
for  costs;  but  in  such  case  the  court  shall  not  render 
judgirent  for  any  further  sum  in  favor  of  the  defendant. 
[1861.] 


TAKING   THE   CAUSE  INTO   COURT.  49 

§  101.    THE  PLAINTIFF'S  REPLY. 

If  the  defendant  in  his  answer  should  allege  a  setoff  or 
counterclaim  such  as  we  have  seen  above,  the  plaintiff  shall 
reply  thereto. 

3.  When  the  answer  sets  up  a  setoff  by  way  of  de- 
fense, the  reply  of  the  plaintiff.  [1779.] 

This  is,  of  course,  only  reasonable.  If  the  defendant  in 
his  answer  only  denied  the  allegations  of  the  complaint,  an 
issue  would  thereupon  be  reached,  and  there  would  be  no 
need  of  further  response  from  the  plaintiff.  It  would  simply 
be  a  case  of  "yes"  and  "no,"  and  which  one  is  true.  But  if 
the  defendant  in  his  answer  introduces  the  new  matter  of  a 
setoff,  the  plaintiff  is  properly  given  opportunity  to  deny  the 
new  allegations.  The  new  matter  may  be  demurred  to,  and 
further,  judgment  may  be  rendered  against  the  party  failing 
to  plead  to  new  matter. 

The  court  shall  establish  the  rules  prescribing  the  time  in 
which  pleadings  subsequent  to  the  complaint  shall  be  filed. 

FORM. 

REPLY. 

[Court  and  Cause.] 

Comes  now  the  plaintiff,  and  replying  to  the  answer 
of  the  defendant  denies  each  and  every  allegation,  mat- 
ter and  statement  in  said  answer  contained  and  each  and 
every  portion  thereof. 

Wherefore  plaintiff  prays  judgment  according  to  the 
demand  of  the  complaint. 

J.  S.  SMITH, 
Attorney  for  Plaintiff. 
4 


50  JUSTICE  OP  THE  PEACE  GUIDE. 


CHAPTER  V. 
THE  TRIAL. 

§  102.  The  venue  or  place  of  trial. 

§  103.  Venue  of  actions. 

§  104.  Change  of  venue. 

§  105.  Same    as   in    superior   court. 

§  106.  Only  one  change  allowed. 

§  107.  Venue  when  private  corporation  is  defendant. 

§  108.  Venue  in   other  eases. 

§  109.  Manner  of  proceeding  on  change  of  venue. 

§  110.  Change  of  venue  on  affidavit. 

§  111.  Cost  bond  of  nonresident  plaintiff. 

5  112.  The  demurrer. 

§  113.  Grounds  of  demurrer. 

§  114.  Bill  of  particulars. 

The  cause  is  now  ready  to  be  tried.  The  parties  to  the 
trial  are  the  plaintiff  and  defendant,  in  person  or  by  their 
attorneys,  the  witnesses,  the  judge  and  the  jury,  if  a  jury  has 
been  demanded. 

§  102.    THE  VENUE  OB  PLACE  OP  TRIAL. 

The  venue  means  the  place  from  which  the  jury  comes  who 
are  to  try  the  case;  or  the  county  where  the  cause  of  action 
arose,  or  the  precinct  fn  which  the  court  sits  before  whom  the 
case  is  brought. 

§  103.    VENUE  OF  ACTIONS. 

All  civil  actions  commenced  in  a  justice  court  against 
a  defendant  or  defendants  residing  in  a  city  or  town 
of  more  than  three  thousand  inhabitants  shall  be 
brought  in  the  justice  court  of  the  precinct  in  said  city 
or  town  in  which  one  or  more  of  such  defendants  reside. 
[1756.] 

The  jurisdiction  of  justices  of  the  peace  in  all  civil 
actions,  except  as  provided  in  the  preceding  section, 
shall  be  coextensive  with  the  limits  of  the  county  in 
which  they  are  elected  or  appointed,  and  no  other  or 
greater,  but  every  justice  of  the  peace  shall  continue 


THE  TRIAL*.  51 

to  reside  and  perform  all  the  duties  of  his  office  in  the 
precinct  for  which  he  was  elected  or  appointed  during 
his  continuance  in  office.  [1757.] 

§  104.    CHANGE  OF  VENUE. 

It  may  be  that  the  defendant  has  reason  to  believe  that  in 
the  court  before  whom  the  plaintiff  has  brought  him  he  can- 
not have  the  fair  and  impartial  trial  which  is  guaranteed  to 
all  men.  A  change,  then,  of  the  place  of  trial  most  be 
granted  upon  the  following  grounds : 

The  court  may,  on  motion,  in  the  following  cases, 
change  the  place  of  trial,  when  it  appears  by  affidavit 
or  other  satisfactory  proof: 

1.  That  there  is  reason  to  believe  that  an  impartial 
trial  cannot  he  had  therein;  or 

2.  That  the  convenience  of  witnesses  or  the  ends  of 
'  justice  would  be  forwarded  by  the  change;  or 

3.  That  from  any  cause  the   justice  is  disqualified; 
which  disqualification  exists  in  either  of  the  following 
cases :  In  an  action  or  proceeding  to  which  he  is  a  party, 
or  in  which  he  is  interested ;  when  he  is  related  to  either 
party  by  consanguinity  or  affinity  within  the  third  de- 
gree; when  he  has  been  of  counsel  for  either  party  in 
the  action  or  proceeding.    [209.] 

§  105.    SAME  AS  IN  SUPERIOR  COURT. 

Change  of  venue  may  be  allowed  for  the  same  causes 
for  which  they  are  allowed  in  the  superior  court. 
[1775.] 

§  106.  ONLY  ONE  CHANGE  ALLOWED. 

Neither  party  shall  be  entitled  to  more  than  one 
change  of  the  place  of  trial,  except  for  causes  not  in 
existence  when  the  first  change  was  allowed.  [210.] 

§  107.    VENUE    WHEN    PRIVATE    CORPORATION    IS 
DEFENDANT. 

An  action  against  a  corporation  may  be  brought  in 
any  county  where  the  corporation  has  an  office  for  the 
transaction  of  business,  or  any  person  resides  upon 
whom  process  may  be  served  against  such  corporation, 
unless  otherwise  provided  in  the  code.  [206.] 


52  JUSTICE  OP  THE  PEACE  GUIDE. 

§  108.    VENUE  IN  OTHER  CASES. 

In  all  other  cases  the  action  must  be  tried  in  the 
county  in  which  the  defendants,  or  some  of  them,  reside 
at  the  time  of  the  commencement  of  the  action,  or  may 
be  served  with  process.  [207.] 

§  109.    MANNER  OP   PROCEEDING  ON   CHANGE  OF 

VENUE. 

The  justice  should  show  in  his  docket  that  an  affidavit  has 
been  made  for  change  of  venue,  that  it  has  been  filed,  and 
an  order  entered  for  the  transfer  of  the  cause  to  another 
justice.  The  new  justice  should  then  receive  a  transcript  of 
all  proceedings  up  to  this  point,  together  with  all  the  papers 
and  records  in  the  action,  so  that  he  will  be  fully  advised  in 
the  premises. 

§  110.    CHANGE  OP  VENUE  ON  AFFIDAVIT. 

If,  previous  to  the  commencement  of  any  trial  before 
a  justice  of  the  peace,  the  defendant,  his  attorney  or 
agent,  shall  make  and  file  with  the  justice  an  affidavit 
that  the  deponent  believes  that  the  defendant  cannot 
have  an  impartial  trial  before  such  justice,  it  shall  be 
the  duty  of  the  justice  to  forthwith  transmit  all  papers 
and  documents  belonging  to  the  case  to  the  nearest 
justice  of  the  peace  in  the  same  county,  who  is  not  of 
kin  to  either  party,  sick,  absent  from  the  county,  or 
interested  in  the  result  of  the  action,  either  as  counsel 
or  otherwise.  The  justice  to  whom  such  papers  and 
documents  are  so  transmitted  shall  proceed  as  if  the 
suit  had  been  instituted  before  him.  Distance,  as  con- 
templated by  this  section,  shall  mean  to  be  by  the  near- 
est traveled  route.  The  costs  of  such  change  of  venue 
shall  abide  the  result  of  the  suit.  [1774.] 

§  111.    COST  BOND  OF  NONRESIDENT  PLAINTIFF. 

If  the  defendant  prevail  against  the  plaintiff,  his  interest 
is  to  see  that  he  secures  the  costs  which  the  judgment  may 
award  him  against  the  plaintiff.  When  the  plaintiff  is  a  non- 
resident of  the  county,  the  defendant  may  require  security 
for  the  costs  as  follows : 

Whenever  the  plaintiff  is  a  nonresident  of  the  county, 
the  justice  may  require  of  him  security  for  the  costs  in 
a  sum  not  exceeding  fifty  dollars  at  the  time  of  the 


THE  TRIAL.  53 

commencement  of  the  action,  provided,  however,  that 
after  an  action  has  been  commenced  by  a  nonresident 
plaintiff  and  no  security  given  for  costs,  the  defendant 
may  require  such  security  by  motion;  when  allowed  all 
proceedings  shall  be  stayed  until  such  security  shall  be 
given.  [1777.] 

§  112.    THE  DEMURRER. 

"A  demurrer  is  to  rest  or  pause.  It  is  an  allegation  that, 
admitting  the  facts  of  the  preceding  pleading  to  be  true  as 
stated  by  the  party  making  it,  it  has  yet  shown  no  cause  why 
the  party  demurring  should  be  compelled  by  the  court  to 
proceed  further.  Its  object  is  to  sweep  away  a  defective 
pleading,  by  raising  issues  of  law  upon  the  facts  stated  in 
the  pleading  demurred  to."  [3  Cyc.  270.] 

§  -113.    GROUNDS  OF  DEMURRER. 

The  code  provides  the  following  grounds  of  demurrer  in 
this  state: 

The  defendant  may  demur  to  the  complaint  when  it 
shall  appear  upon  the  face  thereof  either, — 

1.  That  the  court  has  no  jurisdiction  of  the  person  of 
the  defendant  or  of  the  subject  matter  of  the  action; 

2.  That  the  plaintiff  has  no  legal  capacity  to  sue ;  or 

3.  That  there  is  another  action  pending  between  the 
same  parties  for  the  same  cause;  or 

4.  That  there  is  a  defect  of  parties,  plaintiff  or  de- 
fendant; or 

5.  That  several  causes  of  action  have  been  improperly 
united ; 

6.  That  the  complaint  does  not  state  facts  sufficient 
to  constitute  a  cause  of  action; 

7.  That  the  action  has  not  been  commenced  within 
the  time  limited  by  law.    [259.] 

In  the  superior  court  service  is  made  of  a  written  demurrer; 
in  the  justice  court  the  demurrer  may  be  made  orally  or  in 
writing. 

§  114.    THE  BILL  OF  PARTICULARS. 

This  is  a  detailed  or  itemized  statement  of  the  separate 
parts  of  an  account ;  as  where  the  plaintiff  sues  for  groceries 
supplied  to  the  defendant  in  various  quantities  of  a  total 


54  JUSTICE  OP  THE  PEACE  GUIDE. 

value,  say,  of  forty  dollars,  the  defendant  may  demand  a 
sworn  statement  setting  forth  the  quantity  of  each  item  and 
the  price  thereof.  Unless  it  appears  that  the  complaint  is 
sufficiently  explicit,  the  court  will  grant  the  defendant  a  bill 
of  particulars.  This  demand  is  usually  made,  of  course,  on 
or  before  the  return  day,  as  it  is  necessary  to  the  defendant's 
proper  defense.  [284.] 

FORM. 
DEMAND  FOR  BILL  OF  PARTICULARS. 

[Court  and  Cause.] 

To  William  Jones, 

Attorney  for  Plaintiff,  Samuel  Smith. 
This  is  to  notify  you  that  the  defendant  hereby  de- 
mands a  bill  of  particulars,  setting  forth  the  items  of 
the  account  whereon  plaintiff  is  maintaining  this  action 
Dated  November  1,  1910. 

THOMAS  JUGGLER, 
Attorney  for  Defendant. 


THE  JURY   TRIAL.  55 


CHAPTER  VI. 
THE  JURY  TRIAL. 

f  115.  Those  exempt  from  jury  service. 

8  116.  Those  who  are  qualified  to  be  jurors. 

5  117.  Demanding  a  jury — Number — Fees. 

f  118.  Selecting   the  jury. 

8  119.  Summoning  the  jury. 

§  120.  Personal  service. 

S  121.  The  juror's  oath. 

§  122.  The  verdict. 

§  123.  When  the  jury  disagrees. 

8  124.  Juror  failing  to   answer  summons. 

i  125.  Challenging,  argument,  etc. 

•Trial  by  jury  is  one  of  the  oldest  institutions  of  our  legal 
system.  Either  party  may  demand  a  trial  by  jury,  in  the 
justice  courts  as  well  as  in  the  superior  courts.  The  general 
difference  is  that  a  number  less  than  twelve  may  sit  as  jurors 
in  justice  courts ;  six  being  the  number  for  the  smaller  court. 
As  a  rule,  it  is  a  duty  incumbent  on  all  qualified  citizens  to 
serve  as  jurors  when  properly  summoned.  By  the  nature  of 
their  occupations,  however,  some  men  are  properly  exempted 
from  this  duty.  A  list  of  those  exempt  follows : 

§  115.    THOSE  EXEMPT  FROM  JURY  SERVICE. 

Civil  officers  of  the  United  States. 

Civil  and  judicial  officers  of  the  state. 

Attorneys  at  law. 

Ministers  of  the  gospel  or  priests. 

School  teachers. 

Practicing  physicians. 

Locomotive  engineers. 

Active  members  of  fire  department. 

Those  who  have  served  twice  as  jurors  in  two  years. 

Persons  over  sixty  years  of  age.     [97] 

§  116.  THOSE  WHO  ARE  QUALIFIED  TO  BE  JURORS. 

The  general  run  of  men  are  qualified,  however,  as  will  be 
seen  from  the  following: 


JUSTICE  OF  THE  PEACE  GUIDE, 

A  person  is  not  competent  to  act  as  a  juror  unless  he 
be — 

1.  An  elector  of  the  state  of  Washington ; 

2.  A  male  inhabitant  of  the  county  in  which  he  is  re- 
turned,  and  who  has  been  an  inhabitant  thereof  for  the 
year  next  preceding  the  time  he  is  drawn  or  called; 

3.  Over  twenty-one  years  of  age ; 

4.  In  the  possession  of  his  natural  faculties  and  of 
sound  mind; 

5.  Able  to  read  and  write  the  English  language ; 

6.  A  person  who  has  been  convicted  of  a  felony  is  not 
competent  to  act  as  a  juror.     [94.] 

§  117.    DEMANDING  A  JURY— NUMBER— FEES. 

The  time  to  demand  a  jury  is  after  the  defendant  has 
appeared  in  the  action;  the  party  demanding  the  jury  pay- 
ing to  the  justice  the  sum  of  six  dollars  as  fees  for  the  jurors . 

After  the  appearance  of  the  defendant,  and  before  the 
justice  shall  proceed  to  inquire  into  the  merits  of  the 
cause,  either  party  may  demand  a  jury  to  try  the  action, 
which  jury  shall  be  composed  of  six  good  and  lawful 
men  having  the  qualifications  of  jurors  in  the  superior 
court  of  the  same  county  unless  the  parties  shall  agree 
upon  a  less  number ;  provided,  that  the  party  demanding 
the  jury  shall  first  pay  to  the  justice  the  sum  of  six 
dollars,  which  shall  be  paid  over  by  the  justice  to  the 
jury  before  they  are  discharged,  and  said  amount  shall 
be  taxed  as  costs  against  the  losing  party.  [1849.] 

The  effect  of  demanding  a  jury  is  to  continue  the  cause 
until  the  time  fixed  for  the  return  of  the  jury . 

When  a  jury  is  demanded,  the  trial  of  the  case  must 
be  adjourned  until  the  time  fixed  for  the  return  of  the 
jury;  if  neither  party  desire  an  adjournment  the  time 
must  be  determined  by  the  justice  and  must  be  on  the 
same  day  or  within  the  next  two  days.  The  jury  must 
be  immediately  selected  as  herein  provided.  [1850.] 

§  118.    SELECTING  THE  JURY. 

In  the  superior  court  the  jury  is  drawn  from  boxes  con- 
taining a  quantity  of  cards  with  the  names  of  qualified  per- 
sons on  them,  the  drawing  being  done  usually  by  a  man 
blindfolded.  As  he  draws  out  the  cards,  the  attendant  calls 
the  name  thereon  and  makes  a  note  of  the  list  for  summon- 


THE  JURY   TRIAL.  57 

ing  later.  The  procedure  is  more  direct  in  the  justice  court ; 
the  judge  writing  in  a  panel  the  names  of  eighteen  citizens 
of  the  county,  both  parties  striking  off  names  alternately 
until  but  six  remain,  which  said  six  are  then  summoned  for 
service. 

The  justice  shall  write  in  a  panel  the  names  of 
eighteen  persons,  citizens  of  the  county,  from  which  the 
defendant,  his  agent  or  attorney,  must  strike  one  name; 
the  plaintiff,  his  agent  or  attorney,  one;  and  so  on 
alternately  until  each  party  shall  have  stricken  six 
names,  and  the  remaining  six  names  shall  constitute  the 
jury  to  try  such  case;  and  if  either  party  neglect  or 
refuse  to  aid  in  striking  the  jury  as  aforesaid,  the  justice 
shall  strike  the  name  in  behalf  of  such  party.  [1851.] 

§  119.    SUMMONING  THE  JUEY. 

•The  six  final  names  having  been  reached  by  the  process 
of  striking  as  above,  the  jurors  are  then  summoned ;  the  said 
summons  being  served  upon  each  member  personally. 

The  justice  shall  thereupon  issue  a  summons  for  the 
jury,  in  which  the  following  form  shall  be  observed  in 
substance : 

FORM. 

The  State  of  Washington, 

County  of , — ss. 

The  State  of  Washington  to  the  Sheriff  or  Any  Con- 
stable of  Said  County: 

You  are  hereby  commanded  to  summon to 

appear  before  me  at  my  office  in precinct,  said 

county,  on  the day  of ,  A.  D.  19 ,  at 

....  o'clock  in  the  noon,  to  serve  as  jurors  in  a 

case  pending  before  me,  then  and  there  to  be  tried. 
And  this  they  shall  in  no  wise  omit :  And  have  you  then 
and  there  this  writ,  with  your  doings  thereon. 

Given  under  my  hand  this  the day  of , 

A.  D 

A.B., 
Justice  of  the  Peace.    [1852.] 

§  120.    PERSONAL  SERVICE. 

The  summons  must  be  personally  served  on  the  jurors. 

Which  said  summons  shall  be  personally  served  upon 
the  persons  named,  and  the  same  shall  be  returned,  with 


56  JUSTICE  OP  THE  PEACE  GUIDE. 

the  names  of  the  persons  summoned,  at  the  time  ap- 
pointed for  the  trial  of  the  cause.    [1852.] 

§  121.    THE  JUROR'S  OATH. 

The  jurors  having  been  selected,  the  whole  six  are  usually 
required  to  rise  together  and  each  holding  up  his  right  hand 
are  then  sworn. 

When  the  jury  is  selected,  the  justice  shall  administer 
to  them  an  oath  or  affirmation,  well  and  truly  to  try  the 
cause.  [1853.] 

FORM. 
Of  Juror  at  Challenge: 

You  do  solemnly  swear  that  you  will  true  answers 
make  to  all  such  questions  as  shall  be  put  to  you,  touch- 
ing your  qualifications  as  a  juror  in  the  cause  about  to 
be  tried  between  Nathaniel  Grumble,  plaintiff,  and  Jona- 
than Quibble,  defendant.  So  help  you  God. 

Of  Jurors  Impaneled: 

You,  and  each  of  you,  do  solemnly  swear  that  you  will 
well  and  truly  try  the  matter  in  issue  between  Nathaniel 
Grumble,  plaintiff,  and  Jonathan  Quibble,  defendant, 
and  a  true  verdict  give  according  to  the  evidence  as 
given  you  on  the  trial.  So  help  you  God. 

Of  Bailiff  in  Charge  of  Jurors : 

You  do  solemnly  swear  that  you  will  keep  this  jury 
together  in  some  suitable  place,  without  food  or  drink, 
except  water,  unless  ordered  by  this  court;  that  you 
will  suffer  no  communication  to  be  made  to  them,  nor 
make  any  yourself  about  the  cause,  unless  by  order  of 
this  court,  except  to  ask  them  whether  they  have  agreed 
upon  their  verdict;  that  you  will  permit  no  person  to 
overhear  any  conversation  or  discussion  they  may  have 
while  deliberating  upon  their  verdict ;  and  that  you  will 
not,  before  their  verdict  is  rendered  to  this  court,  com- 
municate to  any  person  the  state  of  their  deliberations 
or  the  verdict  agreed  upon.  So  help  you  God. 

OATH  TO  JURORS  IN  CRIMINAL  CAUSE. 
You  and  each  of  you  do  solemnly  swear  that  you  will 
well  and  truly  try  the  issue  in  this  action  between  the 
state  of  Washington  and  the  defendant,  and  a  true  ver- 
dict give  according  to  the  evidence  given  you  in  court 
and  the  laws  of  this  state.  So  help  you  God. 


THE   JURY   TRIAL*  59 

§  122.    THE  VERDICT. 

When  the  jury  have  agreed  on  their  verdict,  they  shall  de- 
liver the  same  to  the  justice  publicly,  who  shall  enter  it  on 
his  docket. 

FORM. 
VERDICTS. 
(In  Criminal  Action.) 
[Court  and  Cause.] 

We,  the  jury,  in  the  case  of  the  state  of  Washington, 
plaintiff,  against  William  Wilfull,  defendant,  find  the 
defendant  guilty  as  charged  [or  not  guilty]. 


Foreman. 
For  Defendant: 
[Court  and  Cause.] 
We,  the  jury,  find  for  the  defendant  [or  plaintiff]. 

On  Counterclaim  or  Offset : 

We,  the  jury,  find  for  the  defendant  on  his  counter- 
claim, in  the  sum  of  eighty  dollars. 


Foreman. 
For  Plaintiff: 
[Court  and  Cause.] 

We,  the  jury,  find  for  plaintiff,  and  assess  his  damages 
at  seventy-five  dollars. 


Foreman. 

For  Defendant  on  Replevin: 
[Court  and  Cause.] 

We,  the  jury,  find  for  defendant,  and  we  find  the 
value  of  the  property  in  dispute  to  be  eighty  dollars, 
and  that  defendant  is  entitled  to  the  return  thereof  from 
plaintiff.  We  also  find  for  defendant  in  the  sum  of 
fifty  dollars  damages  for  the  taking  and  detention  of 
said  property  by  the  plaintiff  herein. 


Foreman. 

For  Plaintiff  on  Replevin: 
[Court  and  Cause.] 

We,  the  jury,  find  for  plaintiff,  and  find  the  value 
of  the  property  in  dispute  to  be  eighty  dollars,  and  that 


60  JUSTICE  OP  THE  PEACE  GUIDE. 

the  plaintiff  is  entitled  to  the  return  thereof  from  the 
defendant.  We  also  find  for  plaintiff  in  the  sum  of  fifty 
dollars  damages  for  the  taking  and  detention  of  said 
property  by  defendant  herein. 


Foreman. 
§  123.    WHEN  THE  JURY  DISAGREES. 

When  the  jury  cannot  agree,  they  may  be  discharged  and 
a  new  venire  issued. 

Whenever  a  justice  shall  be  satisfied  that  a  jury  sworn 
in  any  civil  cause  before  him,  having  been  out  a  reason- 
able time,  cannot  agree  on  their  verdict,  he  may  dis- 
charge them,  and  issue  a  new  venire,  unless  the  parties 
consent  that  the  justice  may  render  judgment  on  the 
evidence  before  him,  or  upon  such  other  evidence  as 
they  may  produce.  [1855.] 

§  124.    JUROR  FAILING  TO  ANSWER  SUMMONS. 

Every  person  who  shall  be  duly  summoned  as  a  juror, 
and  shall  not  appear  nor  render  a  reasonable  excuse  for 
his  default,  shall  be  subject  to  a  fine  not  exceeding 
ten  dollars.  [1856.] 

§  125.    CHALLENGING,  ARGUMENT,  ETC. 

When  the  jury  shall  have  come  into  court,  they  are  sworn 
to  answer  truly  all  questions  properly  propounded  to  them 
touching  their  qualifications  to  act  as  jurors  (see  "Qualifica- 
tions," §  116).  When  the  answer  shows  that  the  juror  un- 
der examination  is  not  qualified  to  act  as  juror,  he  may  be 
challenged  by  either  party,  the  challenge  being  said  to  be  for 
"cause"  as  opposed  to  the  "peremptory"  challenge,  or  the 
challenge  without  cause  assigned.  The  places  vacant  on  the 
jury  by  challenge  may  be  filled  by  the  constable,  who  may 
select  bystanders  or  persons  in  the  court.  All  being  then 
found  qualified  jurors,  they  are  sworn  to  try  the  cause  and 
the  jury  is  said  to  be  impaneled. 

At  the  conclusion  of  the  evidence,  counsel  for  both  parties 
may  address  the  jury  in  argument. 

The  right  of  argument  by  counsel  is  as  well  estab- 
lished as  the  right  of  a  party  to  be  represented  by  coun- 
sel. Argument  of  a  case  is  as  much  a  part  of  the  trial 
as  the  hearing  of  evidence.  [18  Cent.  Law  Journal, 
363.] 


THE   WITNESSES.  61 


CHAPTER  VII. 
THE  WITNESSES. 

f  126.  Who  may  be  witnesses. 

9  127.  Persona  not  qualified  to  be  witnesses. 

§  128.  Disqualifications  of  witnesses  by  reason  of  relationship,  etc. 

§  129.  Witnesses  within  twenty   miles. 

§  130.  Service. 

§  131.  Compelling  adverse  party  to  testify. 

§  132.  Effect  of  party  refusing  to  testify. 

§  133.  Party  examined  on  his  own  behalf. 

§  134.  Witness  failing  to  appear — Liability  for  damages. 

5  135.  Writ  of  attachment  for  witness. 

§  136.  Writ  to  be  served  same  as  warrant. 

§  137.  Depositions. 

§  138.  Time  of  taking   depositions. 

§  139.  Deposition  taken  out  of  state. 

§  140.  Depositions  to   be  taken  on  notice. 

§  141.  Use   of   depositions. 

9  142.  Service  of  notice  by  publication. 

5  143.  Deposition  to  be  written  and  certified. 

§  144.  Sealing  and  transmitting   deposition. 

§  145.  Use  on  trial. 

The  justice  of  the  peace  has  authority  to  compel  the  attend- 
ance of  persons  as  witnesses  in  his  court  within  an  area  of 
twenty  miles.  The  witness  must  be  served  with  subpoena — a 
command,  under  penalty,  for  the  person  to  attend ;  a  penalty 
which  may  be  enforced  for  the  nonattendance  of  the  person 
commanded. 

§  126.    WHO  MAY  BE  WITNESSES. 

Every  person  of  sound  mind,  suitable  age  and  discretion, 
except  as  hereinafter  provided,  may  be  a  witness  in  any 
action  or  proceeding.  [1210.] 

It  will  be  seen  that  there  is  no  strict  age  requirement  for  a 
witness.  As  long  as  the  witness  is  of  years  of  discretion  and 
able  to  appreciate  the  solemnity  of  an  oath,  he  is  qualified, 
even  though  he  may  be  quite  a  young  child. 

The  fact  that  the  witness  may  be  one  of  the  parties  to  the 
action  does  not,  of  necessity,  disqualify  him  from  testifying. 


62  JUSTICE  OF  THE  PEACE  GUIDE. 

No  person  offered  as  a  witness  shall  be  excluded  from 
giving  evidence  by  reason  of  his  interest  in  the  event  of 
the  action,  as  a  party  thereto  or  otherwise,  but  such  in- 
terest may  be  shown  to  affect  his  credibility:  Provided, 
however,  that  in  an  action  or  proceeding  where  the 
adverse  party  sues  or  defends  as  executor,  administra- 
tor or  legal  representative  of  any  deceased  person,  or 
as  deriving  right  or  title  by,  through  or  from  any  de- 
ceased person,  or  as  the  guardian  or  conservator  of  the 
estate  of  any  insane  person,  or  of  any  minor  under 
the  age  of  fourteen  (14)  years,  then  a  party  in  interest 
or  to  the  record,  shall  not  be  admitted  to  testify  in  his 
own  behalf  as  to  any  transaction  had  by  hi™  with,  or 
any  statement  made  to  him  by  any  such  deceased  or 
insane  person,  or  by  any  such  minor  under  the  age  of 
fourteen  (14)  years:  Provided,  further,  that  this  exclu- 
sion shall  not  apply  to  parties  of  record  who  sue  or 
defend  in  a  representative  or  fiduciary  capacity,  and 
who  have  no  other  or  further  interest  in  the  action. 
[1211.] 

§  127.    PERSONS  NOT  QUALIFIED  TO  BE  WITNESSES. 

Insanity,  intoxication,  and  being  under  the  age  of  ten 
years  will  disqualify  a  witness.  The  provision  against  a 
child  under  ten  years  is  conditional  upon  the  child's  inca- 
pacity of  receiving  true  impressions  of  the  facts  in  question 
or  of  relating  them  truly.  Many  facts,  though,  a  child  under 
ten  years  of  age  may  be  able  to  appreciate  and  relate,  and 
generally  he  is  allowed  to  take  the  stand. 

The  following  persons  shall  not  be  competent  to 
testify:— 

1.  Those  who  are  of  unsound  mind,  or  intoxicated  at 
the  time  of  their  production  for  examination,  and 

2.  Children  under  ten  years  of  age,  who  appear  in- 
capable of  receiving  just  impressions  of  the  facts,  re- 
specting which  they  are  examined,  or  of  relating  them 
truly.     [1213.] 

§  128.    DISQUALIFICATIONS  OF  WITNESSES  BY  REA- 
SON OF  RELATIONSHIP,  ETC. 

Public  policy  requires  that  the  relationship  existing  be- 
tween certain  persons  shall  be  a  bar  to  those  persons  acting  as 
witnesses.  There  are  confidential  relations  between  people  in 


THE  WITNESSES.  63 

some  cases  which  the  law  will  not  violate,  as  husband  and  wife, 
lawyer  and  client,  priest  and  parishioner. 

The  following  persons  shall  not  be  examined  as  wit- 
nesses : 

1.  A  husband  shall  not  be  examined  for  or  against 
his  wife,  without  the  consent  of  the  wife,  nor  a  wife  for 
or  against  her  husband  without  the  consent  of  the  hus- 
band; nor  can  either,  during  marriage  or  afterward, 
be  without  the  consent  of  the  other,  examined  as  to 
any  communication  made  by  one  to  the  other  during 
marriage.    But  this  exception  shall  not  apply  to  a  civil 
action  or  proceeding  by  one  against  the  other,  nor  to  a 
criminal  action  or  proceeding  for  a  crime  committed  by 
one  against  the  other. 

2.  An  attorney  or  counselor  shall  not,  without  the 
consent  of  his  client,  be  examined  as  to  any  communica- 
tion made  by  the  client  to  him,  or  his  advice  given 

-thereon  in  the  course  of  professional  employment. 

3.  A  clergyman  or  priest  shall  not,  without  the  con- 
sent of  the  person  making  the  confession,  be  examined 
as  to  any  confession  made  to  him  in  his  professional 
character,  in  the  course  of  discipline  enjoined  by  the 
church  to  which  he  belongs. 

4.  A  regular  physician  or  surgeon  shall  not,  with- 
out the  consent  of  his  patient,  be  examined  in  a  civil 
action  as  to  any  information  acquired  in  attending  such 
patient,  which  was  necessary  to  enable  him  to  prescribe 
or  act  for  the  patient. 

5.  A  public  officer  shall  not  be  examined  as  a  witness 
as  to  communications  made  to  him  in  official  confidence, 
when  the  public  interest  would  suffer  by  the  disclosure. 
[1214.] 

§  129.    WITNESSES  WITHIN  TWENTY  MILES. 

A  subpoena  issued  by  a  justice  of  the  peace  shall  be 
valid  to  compel  the  attendance  of  a  witness  in  the 
justice's  court,  if  such  witness  be  within  twenty  miles 
of  the  place  of  trial.  [1898.] 

§  130.     SERVICE. 
A  person  over  eighteen  years  of  age  may  serve  the  subpoena. 

A  subpoena  may  be  served  by  any  person  above  the 
age  of  eighteen  years,  by  reading  it  to  the  witness,  or 
by  delivering  to  him  a  copy  at  his  usual  place  of  abode. 
[1899.] 


64  JUSTICE  OP  THE  PEACE  GUIDE. 

FORM. 
SUBPOENA. 

State  of  Washington, 

County  of , — ss. 

To : 

In  the  name  of  the  state  of  Washington,  you  are 
hereby  required  to  appear  before  the  undersigned,  one 
of  the  justices  of  the  peace  in  and  for  the  said  county, 

on  the day  of ,  19. . . .,  at o'clock  in 

the  ....  noon,  at  his  office  in ,  to  give  evidence 

in  a  certain  cause,  then  and  there  to  be  tried,  between 
A  B,  plaintiff,  and  C  D,  defendant,  on  the  part  of  [the 
plaintiff  or  defendant  as  the  case  may  be]. 

Given  under   my  hand  this day  of    , 

19 

JP, 

Justice  of  the  Peace. 

SUBPOENA  DUCES  TECUM. 

(The  following  should  be  added  to  the  above  form 
when  it  is  desired  to  have  the  witness  bring  in  books  or 
documents  material  to  the  issue:) 

And  you,  the  said  Timothy  See,  are  further  required 
to  bring  with  you  [the  books,  papers  or  documents  de- 
sired] and  all  other  papers  which  you  have  in  your  pos- 
session touching  the  matter  in  dispute. 

Given  under  my  hand,  etc. 

§  131.  COMPELLING  ADVERSE  PARTY  TO  TESTIFY. 
A  party  to  the  action  may  be  examined  as  a  witness, 
at  the  instance  of  the  adverse  party,  and  for  that  pur- 
pose may  be  compelled  in  the  same  manner,  and  subject 
to  the  same  rules  of  examination,  as  any  other  witness, 
to  testify  at  the  trial  or  appear  and  have  his  deposition 
taken.  [1903.] 

The  examination  of  a  party  thus  taker  may  be  re- 
butted by  adverse  testimony.  [1904.] 

§  132.    EFFECT  OF  PARTY  REFUSING  TO  TESTIFY. 

When  a  party  refuses  to  testify,  his  complaint,  answer  or 
pleadings  may  be  stricken  and  judgment  taken  against  him. 

If  a  party  refuse  to  attend  and  testify  at  the  trial, 
or  give  his  deposition  before  trial,  "or  give  his  deposi- 


THE  WITNESSES.  65 

tion  before  trial  when  required, ' '  his  complaint,  answer 
or  reply,  may  be  stricken  out  and  judgment  taken 
against  him.  [1905.] 

§  133.    PARTY  EXAMINED  ON  HIS  OWN  BEHALF. 

If  the  adverse  party  examine  his  opponent,  the  opponent 
may  then  be  examined  on  any  matter  pertinent  to  the  issue. 
If  he  testify,  however,  to  new  matter,  his  adversary  may 
likewise  be  examined. 

A  party  examined  by  an  adverse  party  may  be  ex- 
amined on  his  own  behalf,  in  respect  to  any  matter  perti- 
nent to  the  issue.  But  if  he  testify  to  any  new  matter, 
not  responsive  to  the  inquiries  put  to  him  by  the  ad- 
verse party,  or  necessary  to  qualify  or  explain  his  an- 
swer thereto,  or  to  discharge,  when  his  answer  would 
charge  himself,  such  adverse  party  may  offer  himself 
as  a  witness,  and  shall  be  so  received.  [1906.] 

§  134.    WITNESS   FAILING   TO    APPEAR— LIABILITY 
FOR  DAMAGES. 

The  witness  being  necessary  to  the  proper  maintenance 
of  the  action,  the  party  who  subpoenas  him  may  have  and 
recover  damages  from  him  for  his  failure  to  appear  and 
testify,  provided  fees  and  mileage  were  tendered  or  paid  the 
witness  at  the  time  of  service. 

Every  person  subpoenaed  as  aforesaid,  and  neglecting 
to  appear,  shall  also  be  liable  to  the  party  in  whose  be- 
half he  may  have  been  subpoenaed,  for  all  damages 
which  such  party  may  have  sustained  by  reason  of  his 
nonappearance :  Provided,  that  such  witness  had  the 
fees  allowed  for  mileage  and  one  day's  attendance  paid, 
or  tendered  him,  in  advance  if  demanded  by  him  at  the 
time  of  the  service.  [1902.] 

§  135.    WRIT  OF  ATTACHMENT  FOR  WITNESS. 

Attachment  is  the  process  whereby  the  justice  may  compel 
the  attendance  in  court  of  any  witness  properly  subpoenaed. 

Whenever  it  shall  appear  to  the  satisfaction  of  the 
justice,  by  proof  made  before  him,  that  any  person,  duly 
subpoenaed  to  appear  before  him  in  an  action,  shall 
have  failed,  without  a  just  cause,  to  attend  as  a  witness 
in  conformity  to  such  subpoena,  and  the  party  in  whose 
behalf  such  subpoena  was  issued,  or  his  agent,  shall 
5 


66  JUSTICE  OF  THE  PEACE  GUIDE. 

make  oath  that  the  testimony  of  such  witness  is  ma- 
terial, the  justice  shall  have  the  power  to  issue  an  at- 
tachment to  compel  the  attendance  of  such  witness: 
Provided,  that  no  attachment  shall  issue  against  a  wit- 
ness in  any  civil  action,  unless  his  fees  for  mileage  and 
one  day's  attendance  have  been  tendered  or  paid  in  ad- 
vance, if  previously  demanded  by  such  witness  from 
the  person  serving  the  subpoena.  [1900.] 

It  will  be  seen  from  this  that  where  a  witness  is  not  alto- 
gether willing  to  come  in  and  testify,  the  safest  way  is  to 
make  the  tender  of  one  day's  fees  and  his  mileage. 

§  136.    WRIT  TO  BE  SERVED  SAME  AS  WARRANT. 

The  defaulting  witness  must  pay  the  costs  of  the  service 
of  the  writ  of  attachment  and  for  the  issuing  thereof,  unless 
he  had  good  cause  for  not  coming  to  court. 

Every  such  attachment  may  be  directed  to  any  sheriff 
or  constable  of  the  county  in  which  the  justice  resides, 
and  shall  be  executed  in  the  same  manner  as  a  warrant ; 
and  the  fees  of  the  officer  for  issuing  and  serving  the 
same  shall  be  paid  by  the  person  against  whom  the 
same  was  issued,  unless  he  show  reasonable  cause,  to 
the  satisfaction  of  the  justice,  for  his  omission  to  attend ; 
in  which  case  the  party  requiring  such  attachment  shall 
pay  all  costs.  [1901.] 

§  137.    DEPOSITIONS. 

When  circumstances  prevent  the  personal  attendance  of  a 
witness  in  court,  his  deposition  may  be  taken.  The  deposi- 
tion is  a  written  statement  of  his  testimony  and  is  usually  in 
the  form  of  questions  and  cross-questions,  just  as  though  he 
were  being  examined  face  to  face.  The  plaintiff  will  submit 
his  list  of  questions  for  the  answers  to  be  written  thereon 
and  the  defendant  will  cross-question  on  those  questions. 
Depositions  may  be  generally  taken  before  persons  authorized 
to  administer  oaths. 

Either  party,  in  an  action  pending  before  a  justice 
of  the  peace,  may  cause  the  deposition  of  a  witness 
therein  to  be  taken,  when  such  witness  resides,  or  is 
about  to  go  more  than  twenty  miles  from  the  place  of 
trial,  or  is  so  sick,  infirm,  or  aged,  as  to  make  it  prob- 
able that  he  will  not  be  able  to  attend  at  the  trial. 
[1907.] 


THE  WITNESSES.  67 

The  deposition  is  taken,  certified  and  returned  in  the  same 
manner  as  are  depositions  for  the  superior  court. 

The  notice  shall  be  served,  and  the  deposition  taken, 
certified  and  returned,  according  to  the  law  regulating 
the  taking  of  depositions  to  be  read  in  the  superior 
court.  [1908.] 

§  138.    TIME  OF  TAKING  DEPOSITIONS. 

Either  party  may  commence  taking  testimony  by 
depositions  at  any  time  after  service  of  summons  upon 
the  defendant.  [1232.] 

§  139.    DEPOSITION  TAKEN  OUT  OP  STATE. 

When  the  witness  is  out  of  the  state  a  commission  may 
issue  from  the  superior  court  for  the  taking  of  his  testimony. 

.  Depositions  may  be  taken  out  of  the  state  by  a  judge, 
justice  or  chancellor  or  clerk  of  any  court  of  record,  a 
justice  of  the  peace,  notary  public,  mayor  or  chief  mag- 
istrate of  any  city  or  town,  or  any  person  authorized 
by  a  special  commission  from  any  court  of  this  state. 
[1239.] 

§  140.    DEPOSITIONS  TO  BE  TAKEN  ON  NOTICE. 

Previous  notice  of  the  time  and  place  of  taking  depositions 
must  be  served  on  the  adverse  party  or  his  attorney. 

Either  party  may  have  the  deposition  of  a  witness 
taken  in  this  state  before  any  judge  of  the  superior 
court,  justice  of  the  peace,  clerk  of  the  supreme  or  su- 
perior court,  mayor  of  a  city,  or  notary  public,  by  serv- 
ing on  the  adverse  party  or  his  attorney  previous 
notice  of  the  time  and  place  of  examination.  The  notice 
shall  be  served  such  time  before  the  time  when  the 
deposition  is  to  be  taken  as  to  allow  the  adverse  party 
sufficient  time  by  the  usual  route  of  travel  to  attend, 
and  three  days  for  preparation,  exclusive  of  the  day  of 
service,  and  the  examination  may,  if  so  stated  in  the 
notice,  be  adjourned  from  day  to  day.  The  notice  shall 
specify  the  action  or  proceeding,  the  name  of  the  court 
or  tribunal  in  which  the  deposition  is  to  be  used,  and 
the  time  and  place  of  the  taking  of  deposition.  It  shall 
be  served  upon  the  adverse  party,  his  agent  or  attorney 
of  record,  or  be  left  at  his  usual  place  of  abode.  [1233.] 


68  JUSTICE  OP  THE  PEACE  GUIDE. 

A.  shorter  time  of  notice  may  be  prescribed  by  the  court. 

The  court,  or  a  judge  thereof,  or  in  an  action  or  pro- 
ceeding before  a  justice  of  the  peace,  the  justice  may, 
upon  sufficient  cause  being  shown  by  affidavit,  prescribe 
a  shorter  time  for  notice  than  that  specified  in  the  last 
preceding  section.  A  copy  of  the  order  shortening  time 
must  be  served  with  the  notice.  [1234.] 

§  141.    USE  OP  DEPOSITIONS. 

Such  deposition  may  be  used  by  either  party  upon  the 
trial,  or  other  proceeding  against  any  party  giving  or 
receiving  the  notice,  subject  to  all  legal  exceptions,  to 
the  competency  or  credibility  of  the  witness,  or  the 
manner  of  taking  the  deposition.  But  if  the  parties 
attend  at  the  examination,  no  objection  to  the  form  of 
an  interrogatory  shall  be  made  at  the  trial,  unless  the 
same  was  taken  at  the  time  of  the  examination.  It 
shall  be  the  duty  of  the  person  taking  the  deposition 
to  propound  to  the  witness  every  question  proposed 
by  either  party,  and  to  note  all  objections  to  the  form 
of  any  interrogatory,  and  when  any  interrogatory  is 
objected  to  on  account  of  form,  unless  the  form  is 
amended  and  the  objection  waived,  he  shall  write  after 
the  question  and  before  the  answer  the  words  "ob- 
jected to,"  and  when  any  witness  declines  to  answer  a 
question  on  the  ground  that  it  will  criminate  himself, 
that  fact  shall  also  be  noted  after  the  question  if  writ- 
ten down.  The  deposition  may  be  taken  in  the  form  of 
a  narrative,  or  by  question  and  answer,  or  partly  in 
either  form,  as  either  party  present  at  the  examination 
shall  require.  When  taken  by  question  and  answer,  the 
officer  shall  first  write  down  the  question  and  then  the 
answer,  as  nearly  as  may  be  in  the  language  of  the  wit- 
ness; but  when  the  deposition  is  read  to  the  witness 
previous  to  signing  it,  he  shall  be  permitted  to  amend 
his  answer  to  any  question  or  any  part  of  his  deposition ; 
such  amendment,  however,  unless  both  parties  shall 
otherwise  agree,  shall  not  be  made  by  way  of  interlining 
or  erasing,  but  shall  be  added  at  the  end  of  the  deposi- 
tion under  the  title  "amendment  by  the  witness,"  and 
such  amendment  shall  intelligibly  refer  to  the  part  so 
amended.  [1244.] 

When  the  adverse  party  is  not  present  and  has  no  attorney 
of  record  on  whom  to  make  notice,  notice  of  the  taking  of 


THE  WITNESSES.  69 

deposition  may  be  had  by  publication  for  three  consecutive 
weeks. 

§  142.    SERVICE  OP  NOTICE  BY  PUBLICATION. 

When  the  party  against  whom  the  deposition  is  to  be 
read  is  absent  from  or  a  nonresident  of  the  state,  and 
has  no  agent  or  attorney  of  record  therein,  he  may  be 
notified  of  the  taking  of  the  deposition  or  the  appli- 
cation for  a  commission  by  publication.  The  publica- 
tion must  be  made  three  consecutive  weeks  in  some 
newspaper  printed  in  the  county  where  the  action  or 
proceeding  is  pending,  if  there  be  any  printed  in  such 
county,  and  if  not,  in  some  newspaper  printed  in  this 
state,  of  general  circulation  in  that  county.  The  publi- 
cation must  contain  all  that  is  required  in  the  written 
or  printed  notice,  and  may  be  proved  in  the  manner 
prescribed  in  case  of  the  publication  of  summons. 
[1241.] 

§  143.    DEPOSITION   TO   BE   WRITTEN  AND   CERTI- 
FIED. 

The  deposition  shall  be  written  by  the  officer  taking 
the  same,  or  by  the  witness,  or  by  some  disinterested 
person  in  the  presence  and  under  the  direction  of  such 
officer.  When  completed  it  shall  be  carefully  read  to  or 
by  the  witness,  corrected  if  desired,  and  subscribed  by 
him.  If  taken  upon  notice  it  shall  be  certified  by  the 
officer  substantially  as  follows: 

State  of  Washington, 
County  of , — ss. 

I,  A  B,  justice  of  the  peace  in  and  for  said  county 
(or  judge,  clerk,  etc.,  as  the  case  may  be),  do  hereby 
certify  that  the  above  deposition  was  taken  before  me 
and  reduced  to  writing  by  myself  (or  witness  as  the 

case  may  be)  at in  said  county,  on  the day  of 

,  19 ,  at o'clock,  in  pursuance  of  notice 

hereto  annexed;  that  the  above-named  witness,  before 
examination  was  sworn  (or  affirmed)  to  testify  the 
truth,  the  whole  truth,  and  nothing  but  the  truth,  and 
that  the  said  deposition  was  carefully  read  to  (or  by) 
said  witness,  and  then  subscribed  by  him, 

A  B,  Justice  of  the  Peace. 

Dated  at the day  of ,  19 

If  the  deposition  be  taken  upon  a  commission  the 
commissioner  shall  certify  it  in  substantially  the  same 


70  JUSTICE  OP  THE  PEACE  GUIDE. 

manner,  and  annex  to  it  the  commission  and  interroga- 
tories.   [1242.] 

§  144.  SEALING  AND  TRANSMITTING  DEPOSITION. 
The  deposition,  whether  taken  upon  notice  or  upon  a 
commission,  shall  be  inclosed  in  a  sealed  envelope  by 
the  officer  taking  the  same  and  directed  to  the  clerk  of 
the  court,  arbitrators,  referee  or  justice  of  the  peace 
before  whom  the  action  is  pending,  or  to  such  persons 
as  the  parties  in  writing  may  agree  upon,  and  either 
delivered  to  the  clerk  of  the  court  or  other  person,  or 
transmitted  through  the  mail  or  by  some  private  per- 
son. [1243.] 

§  145.    USE  ON  TRIAL. 

The  justice  shall  allow  every  deposition  taken,  certi- 
fied and  returned  according  to  law,  to  be  read  on  the 
trial  of  the  cause  in  which  it  is  taken,  in  all  cases  where 
the  same  testimony,  if  given  verbally  before  him,  could 
have  been  received;  but  no  such  deposition  shall  be 
read  on  the  trial,  unless  it  appears  to  the  justice  that 
the  witness,  whose  deposition  is  so  offered: 

1.  Is  dead,  or  resides  more  than  twenty  miles  from 
the  place  of  trial;  or 

2.  Is  unable,  or  cannot  safely  attend  before  the  jus- 
tice, on  account  of  sickness,  age,  or  other  bodily  in- 
firmity; 

3.  That  he  has  gone  more  than  twenty  miles  from 
the  place  of  trial  without  the  consent  or  collusion  of  the 
party  offering  the  deposition.    [1909.] 


EXAMINATION  OP  WITNESSES. 


CHAPTEK  VIII. 
EXAMINATION  OF  WITNESSES. 

S  146.  The  direct  examination. 

(  147.  Cross-examination. 

§  148.  Redirect  examination. 

§  149.  Leading  questions. 

§  150.  Impeaching  a  witness. 

S  151.  Refreshing  the  witness*  memory. 

S  152.  Objections  to  questions. 

As  outlined  in  the  statute,  the  plaintiff  first  presents  his 
evidence  to  the  court.  The  plaintiff,  competent  to  be  a  wit- 
ness in  his  own  behalf,  let  us  say,  will  take  the  stand  first 
and  answer  the  questions  which  are  propounded  to  him  by  his 
attorney.  When  the  attorney  is  satisfied  that  the  plaintiff's 
complaint  is  fully  stated,  he  yields  to  the  defendant's  attor- 
ney, who  then  cross-examines  the  witness  upon  the  matters 
to  which  he  has  just  testified.  The  defendant  should  con- 
fine his  cross-examining  questions  to  those  points  which 
have  been  brought  out  by  the  plaintiff.  He  must  not  seek 
on  cross-examination  to  present  the  defendant's  defense;  his 
attention  is  properly  directed  to  skillfully  ascertaining  and, 
if  possible,  demonstrating  any  falsehood  or  inconsistency 
in  the  plaintiff's  story.  The  defendant  is  guaranteed  by 
law  and  the  practice  plenty  of  opportunity  to  build  his 
defense  by  taking  the  stand  when  his  turn  comes  and  tell- 
ing his  side  under  the  sympathetic  questioning  of  his  own 
counsel,  subject  also  to  cross-examination  by  the  plaintiff. 
So  with  each  witness  until  the  whole  trouble  is  presented, 
more  or  less  clearly,  to  the  justice's  understanding. 

FORM. 
OATHS. 

Of  Witness: 

You  do  solemnly  swear  that  the  evidence  you  shall 
give  in  the  cause  now  being  heard  between  Nathaniel 


72  JUSTICE  OP  THE  PEACE  GUIDE. 

Grumble,  plaintiff,  and  Jonathan  Quibble,  defendant, 
shall  be  the  truth,  the  whole  truth,  and  nothing  but  the 
truth.  So  help  you  God. 

To  which  the  witness  replies,  "I  do." 

Of  Interpreter : 

You  do  solemnly  swear  that  you  will  justly,  truly,  and 
impartially  interpret  to  Otto  Forin  the  oath  about  to 
be  administered  to  him;  and  the  questions  which  may 
be  asked  him,  and  the  answers  that  he  shall  give  to  such 
questions,  relative  to  the  cause  now  being  heard  before 
this  court.  So  help  you  God. 

§  146.    THE  DIRECT  EXAMINATION. 

This  examination  of  a  witness  by  the  party  calling  him  is 
known  as  the  direct  examination,  and,  as  we  have  seen,  is 
sympathetically  conducted  with  a  view  to  drawing  out  the 
whole  story. 

§  147.     CROSS-EXAMINATION 

Is  the  questioning  by  the  adverse  party,  as  we  have  seen, 
and  may  be  followed  by 

§  148.    REDIRECT  EXAMINATION, 

Which  is  an  examination  by  the  party  calling  the  wit- 
ness of  matters  brought  out  beneath  the  cross-examination 
of  the  opposing  party. 

§  149.    LEADING  QUESTIONS. 

The  leading  question  is  a  question  which  suggests  to  the 
witness  the  answer  which  the  examiner  desires  him  to  return. 
Other  forms  of  leading  questions  are  sometimes  distinguished 
from  each  other,  unnecessarily,  I  venture  to  say,  for  the 
sum  of  it  all  is  that  a  leading  question  is  one  propounded 
to  produce  a  certain  answer,  no  matter  whether  the  form  of 
propounding  is  obviously  suggestive  or  conceals  a  fact  be- 
neath the  form  of  a  question  which  the  propounder  wishes  the 
witness  to  simply  admit  or  deny.  The  leading  question  is 
not  permitted  in  the  direct  examination  of  a  witness,  but  con- 
siderable latitude  is  allowed  on  cross-examination. 


EXAMINATION  OP  WITNESSES.  73 

§  150.    IMPEACHING  A  WITNESS. 

This  is  to  call  his  testimony  untrue,  not  necessarily  inten- 
tional falsehood,  for  often  a  witness  may  be  honestly  mis- 
taken and  his  testimony  shown  to  be  inconsistent  with  the 
story  told  under  direct  examination,  or  inconsistent  with, 
statements  made  out  of  court  concerning  the  matter. 

§  151.    REFRESHING  THE  WITNESS'  MEMORY. 

When  the  transaction  as  to  which  the  witness  may  be  testi- 
fying is  involved,  as  in  a  matter  of  numerous  small  account* 
of  different  dates  and  different  sums,  the  memory  is  often 
hazy,  and  when  such  is  the  case  the  witness  may  use  memo- 
randa to  bring  the  matters  back  to  mind.  His  counsel  must 
show,  however,  certain  important  things ;  as,  for  instance,  he 
should  ask  the  witness  when  the  memorandum  in  question  was 
made,  seeking  thereby  to  show  that  the  memorandum  was 
made  at  or  near  the  time  of  the  original  transaction.  Two  or 
three  simple  questions  should  suffice  to  bring  this  out.  It  may 
be  that  the  memorandum  is  in  the  witness'  handwriting  and 
he  knew  it  to  be  correct  when  he  made  it,  or  it  may  be  that  he 
saw  somebody  else  make  the  memorandum  at  the  time  of 
the  transaction  and  that  he  knew  that  it  was  correct. 

§  152.    OBJECTIONS  TO  QUESTIONS. 

Opposing  counsel  has  the  right  of  objecting  to  questions 
as  follows: 

To  the  form  of  the  question;  that  it  is  leading,  etc. 

That  the  matter  is  irrelevant,  incompetent  and  immaterial. 

That  the  answer  would  incriminate  the  witness. 

That  the  examiner  is  improperly  impeaching  his  own  wit- 
ness. 


74  JUSTICE  OP  THE  PEACE  GUIDE. 


OHAPTER  IX. 
THE  JUDGMENT. 

§  153.  Dismissal. 

§  154.  Judgment  by  default. 

§  155.  The  costs. 

§  156.  When  defendant  tenders  judgment  and  costs. 

§  157.  The  judgment  lien. 

§  158.  The  transcript  of  judgment. 

§  159.  What  the  transcript  contains. 

§  160.  Entering  the  transcript. 

§  161.  Property  in  another  county. 

The  plaintiff  has  submitted  his  case  and  the  defendant  has 
finished  his.  The  court  has  been  the  judge  of  the  law  and 
the  facts  under  the  following  authority: 

Upon  issue  joined,  if  a  jury  trial  be  not  demanded, 
the  justice  shall  hear  the  evidence,  and  decide  all  ques- 
tions of  law  and  fact,  and  render  judgment  accordingly. 
[1848.] 

And  now  the  time  has  come  for  the  justice  to  say  which 
party  shall  prevail.  His  judgment  is  the  final  determina- 
tion of  the  rights  of  the  parties  as  far  as  his  court  is  con- 
cerned; the  right  of  appeal,  of  course,  existing  for  either 
party  which  considers  itself  aggrieved  by  the  judgment.  The 
judgment  should  be  entered  in  the  docket  in  a  civil  case  within 
three  days  after  the  close  of  the  trial.  If  it  be  a  criminal 
case,  the  defendant  is  either  discharged  or  committed,  as  the 
case  may  be;  if  the  trial  be  by  jury,  the  justice  shall  imme- 
diately render  his  decision  thereon. 

Upon  the  verdict  of  a  jury,  the  justice  shall  immedi- 
ately render  judgment  thereon.  When  the  trial  is  by 
the  justice,  judgment  shall  be  entered  immediately  after 
the  close  of  the  trial,  if  the  defendant  has  been  arrested 
and  is  still  in  custody ;  in  other  cases  it  shall  be  entered 
within  three  days  after  the  close  of  the  trial.  [1859.] 

There  are  two  peculiar  forms  of  judgment  aside  from  the 
usual  judgment  upon  a  submitted  case,  and  those  two  forms 
are  the  judgment  of  nonsuit  and  the  judgment  by  default. 


THE   JUDGMENT.  75 

Such  judgments  carry  the  costs  to  the  nonsuited  or  defaulting 
party. 

§  153.    DISMISSAL. 

Judgment  that  the  action  be  dismissed  without  preju- 
dice to  a  new  action,  may  be  entered,  with  costs,  in  the 
following  cases: — 

1.  When  the  plaintiff  voluntarily  dismisses  the  ac- 
tion before  it  is  finally  submitted. 

2.  When  he  fails  to  appear  at  the  time  specified  in 
the  notice,  upon  continuance,  or  within  one  hour  there- 
after. 

3.  When  it  is  objected  at  the  trial,  and  appears  by 
the  evidence  that  the  action  is  brought  in  the  wrong 
county;  but  if  the  objection  be  taken  and  overruled, 
it  shall  be  cause  only  of  reversal  or  appeal ;  if  not  taken 
at  the  trial,  it  shall  be  deemed  waived,  and  shall  not 
be  cause  of  reversal.    [1857.] 

§  154.    JUDGMENT  BY  DEFAULT. 

When  the  defendant  fails  to  appear  and  plead  at  the 
time  specified  in  the  notice,  or  within  one  hour  there- 
after, judgment  shall  be  given  as  follows: 

1.  When  the  defendant  has  been  served  with  a  true 
copy  of  the  complaint,  judgment  shall  be  given  without 
further  evidence  for  the  sum  specified  therein; 

2.  In  other  cases,  the  justice  shall  hear  the  evidence 
of  the  plaintiff,  and  render  judgment  for  such  sum  only 
as  shall  appear  by  the  evidence  to  be  just  but  in  no 
case  exceed    the    amount    specified  in  the  complaint. 
[1858.] 

Thus  the  failure  of  the  plaintiff  to  appear  within  one  hour 
of  the  appointed  time  is  cause  for  a  nonsuit,  and  the  same 
failure  to  act  on  the  part  of  the  defendant  is  cause  for  de- 
fault judgment. 

If  the  plaintiff  comes  in  and  the  defendant  is  not  there, 
he  waits  until  the  justice  calls  the  title  of  the  cause  from 
his  calendar,  when  he  informs  the  court  that  personal  ser- 
vice was  had  on  the  defendant.  At  the  end  of  one  hour  he 
may  then  move  for  a  judgment  by  default,  which  shall  be 
accordingly  rendered. 


76  JUSTICE  OP  THE  PEACE  GUIDE. 

If  the  defendant  is  in  court  and  the  plaintiff  does  not  come 
in  within  the  hour,  the  defendant  may  thereupon  move  the 
court  for  judgment  of  nonsuit,  which  shall  be  rendered  ac- 
cordingly. It  should  be  noticed,  however,  that  when  the  de- 
fendant obtains  the  judgment  of  nonsuit,  it  does  not  operate 
to  debar  the  plaintiff  bringing  a  new  suit  for  the  same  cause; 
it  will  operate  sometimes  to  the  extent  that  the  justice  shall 
require  the  plaintiff  to  pay  the  defendant's  costs  in  the  non- 
suited action  before  hearing  the  new  cause. 

FORM. 
JUDGMENT  FOR  PLAINTIFF. 

The  jury  by  their  verdict  [or  the  court]  having  found 
for  the  plaintiff  and  assessing  his  damages  at  thirty 
dollars :  It  is  adjudged,  this  30th  day  of  May,  1912,  that 
the  plaintiff  recover  of  the  defendant  the  sum  of  thirty 
dollars  damages,  and  the  costs  of  this  action,  taxed  at 
$7,  and  $5  as  attorney's  fees,  making  a  total  judgment, 
in  favor  of  plaintiff  and  against  defendant,  of  forty- 
two  dollars. 

J  P. 

JUDGMENT  FOR  DEFENDANT. 

The  jury  by  their  verdict  [or  the  court]  having  found 
for  the  defendant  and  against  plaintiff:  Therefore,  it  is 
adjudged,  this  30th  day  of  May,  1911,  that  the  defend- 
ant recover  of  the  plaintiff  the  sum  of  eight  dollars, 
his  costs  as  taxed,  and  $5  attorney's  fees,  amounting  in 
all  to  thirteen  dollars. 

J  P. 

JUDGMENT  ON  COUNTERCLAIM. 

The  jury  having  found  [or  the  court]  that  the  de- 
fendant is  indebted  to  the  plaintiff  in  the  sum  of  $15 
alleged  in  the  complaint,  and  that  the  plaintiff  is  in- 
debted to  the  defendant  in  the  sum  of  $30  as  alleged 
in  defendant's  counterclaim:  Therefore,  it  is  adjudged, 
this  1st  day  of  August,  1910,  that  the  defendant  recover 
of  the  plaintiff  the  sum  of  $15,  and  the  costs  of  this 
action,  taxed  at  $7,  and  $5  attorney's  fees,  amounting 
in  all  to  twenty-seven  dollars. 

J  P. 


THE  JUDGMENT.  77 

§  155.    THE  COSTS. 

We  have  seen  that  the  plaintiff  has  spent  one  dollar  for 
filing  his  complaint  and  to  this  must  be  added  the  cost  of 
serving  the  notice  and  complaint,  if  any,  and,  in  addition, 
if  plaintiff  has  been  represented  by  counsel,  the  law  allows 
a  five  dollar  attorney's  fee;  all  of  which  costs  are  added  to 
the  judgment  rendered  for  the  plaintiff.  In  like  manner  the 
defendant,  if  he  prevail,  is  allowed  his  costs,  as  attorney's 
and  witnesses'  fees.  The  costs  include  witnesses'  fees. 

When  the  prevailing  party  is  entitled  to  recover  costs 
in  a  civil  action  before  a  justice  of  the  peace,  the  jus- 
tice shall  add  the  amount  thereof  to  the  judgment; 
in  case  of  failure  of  the  plaintiff  to  recover  or  of  dis- 
missal of  the  action,  the  justice  shall  enter  up  judgment 
in  favor  of  the  defendant  for  the  amount  of  his  costs; 
and  in  case  any  party  so  entitled  to  costs  is  represented 
in  the  action  by  an  attorney,  the  justice  shall  include  an 
attorney's  fee  of  five  dollars  as  part  of  the  costs. 
[1862.] 

§  156.    WHEN    DEFENDANT    TENDERS    JUDGMENT 
AND  COSTS. 

The  defendant  may  think  that  he  owes  but  a  part  of  the 
bill  the  plaintiff  is  suing  on.  He  will,  therefore,  tender  in 
writing  an  offer  allowing  judgment  to  be  taken  against  him 
for  that  amount  and  tendering  what  costs  have  accrued  to 
that  time.  If  he  loses,  and  the  plaintiff  recover  more  than 
the  tendered  judgment,  the  defendant  cannot  draw  that 
money  out  of  the  registry  of  the  court,  but  it  is  turned  over 
to  the  plaintiff. 

If  the  defendant,  at  any  time  before  the  trial,  offer 
in  writing  to  allow  judgment  to  be  taken  against  him 
for  a  specified  sum,  the  plaintiff  may  immediately  have 
judgment  therefor,  with  costs  then  accrued;  but  if  he 
do  not  accept  such  offer  before  the  trial,  and  fail  to 
recover  on  the  trial  of  the  action,  a  sum  greater  than 
the  offer,  such  plaintiff  shall  not  recover  any  costs  that 
may  accrue  after  he  shall  have  been  notified  of  the  offer 
of  the  defendant,  but  such  costs  shall  be  adjudged 
against  him,  and  if  he  recover,  deducted  from  his  recov- 
ery. But  the  offer  and  failure  to  accept  it  shall  not  be 


78  JUSTICE  OF  THE  PEACE  GUIDE. 

given  in  evidence  to  affect  the  recovery,  otherwise  than 
as  to  costs,  as  above  provided.    [I860.] 

§  157.    THE  JUDGMENT  LIEN. 

What  is  the  judgment  worth  to  the  prevailing  party  after 
it  is  secured?  Well,  if  the  loser  has  any  real  estate,  the 
judgment  becomes  a  lien  thereon  for  a  period  of  five  years, 
but  such  lien  does  not  commence  until  the  lien  laws  have 
been  complied  with.  When  the  law  has  been  complied 
with,  then  the  property  is  subject  to  be  sold  to  satisfy  the 
judgment  in  the  same  manner  as  judgments  rendered  in  the 
superior  court.  The  enforcement  of  judgments  against  per- 
sonal property  will  be  treated  of  later. 

§  158.    THE  TRANSCRIPT  OF  JUDGMENT. 

The  prevailing  party,  if  he  wishes  to  make  the  judgment  a 
lien  on  the  debtor's  property,  must  secure  a  transcript,  or 
abstract,  of  the  proceedings  in  the  justice  court  and  must 
file  the  same  with  the  clerk  of  the  county,  paying,  generally, 
a  fee  of  seventy-five  cents  for  such  filing. 

The  real  estate  of  any  judgment  debtor  and  such  as 
he  may  acquire,  shall  be  held  and  bound  to  satisfy  any 
judgment  of  a  justice  of  the  peace  for  the  period  of 
five  years  from  the  day  on  which  said  judgment  was 
rendered,  and  such  judgments  shall  be  a  lien  thereupon 
to  commence  from  the  time  of  the  filing  and  indexing 
of  a  duly  certified  transcript  or  abstract  of  such  judg- 
ment, as  provided  by  this  chapter,  with  the  county  clerk 
of  the  county  in  which  said  real  estate  is  situated, 
[450.] 

§  159.    WHAT  THE  TRANSCRIPT  CONTAINS. 

An  abstract  of  judgment  as  provided  for  in  this  chap- 
ter shall  contain : — 

1.  The  name  of  the  party  or  parties  in  whose  favor 
the  judgment  was  rendered; 

2.  The  name  of  the  party  or  parties  against  whom 
the  judgment  was  rendered; 

3.  The  date  of  the  rendition  of  the  judgment; 

4.  The  amount  for  which  the  judgment    was  ren- 
dered, and  in  the  following  manner,  viz.:  Principal, 
$ interest,  $  ,  costs,    $  ;    total,   $ 


THE  JUDGMENT.  79 

A  transcript  of  a  judgment  of  a  justice  of  the  peace 
provided  for  by  this  chapter  shall  contain  an  exact  copy 
of  the  judgment  from  the  justice's  docket.  [451.] 

§  160.    ENTERING  THE  TRANSCRIPT. 

The  county  clerk  shall  enter  such  transcript  in  his  execu- 
tion docket,  where  whoever  is  interested  may  consult  the  rec- 
ord and  ascertain  the  liens  of  this  character  which  may  he 
against  certain  property. 

It  shall  he  the  duty  of  the  county  clerk  to  enter  in 
his  execution  docket  any  duly  certified  abstract  or 
transcript  of  any  judgment  of  any  of  the  courts  men- 
tioned in  this  chapter,  and  he  shall  index  the  same  in 
the  same  manner  as  judgments  originally  rendered  in 
the  superior  court  of  the  county  of  which  he  is  clerk. 
[453.] 

§  161.  PROPERTY  IN  ANOTHER  COUNTY. 

When  the  judgment  debtor  does  not  possess  goods  or  chat- 
tels in  the  county  of  the  judgment  to  satisfy  the  judgment 
but  has  some  in  another  county,  transcript  is  transferred  to  a 
justice  in  the  county  where  the  property  is,  who  may  issue 
execution  thereon. 

If  the  defendant  have  not  goods  and  chattels  in  the 
county  in  which  judgment  was  rendered  sufficient  to 
satisfy  the  execution,  the  justice  before  whom  such 
judgment  may  be  shall,  at  the  request  of  the  party 
entitled,  make  out  a  certified  transcript  of  the  same, 
which  may  be  delivered  to  a  justice  in  any  other  county, 
who  shall  make  an  entry  thereof  in  his  docket,  and  issue 
execution  thereon  for  the  amount  of  the  judgment,  or 
such  part  as  shall  be  unsatisfied,  with  costs  as  in  other 
cases. 


80  JUSTICE  OF  THE  PEACE  GUIDE. 


•CHAPTER  X. 

THE  APPEAL. 

S  162.  The  amount  in  controversy. 

$  163.  How  the  appeal  is  taken. 

164.  Appeal  stays  proceedings. 

165.  Execution  recalled  by  appeal. 

166.  The  transcript. 

167.  The  same  pleadings  as  in  lower  court. 

168.  Superior  court  may  compel  transcript. 

169.  Defective  bond — How  cured. 

170.  Judgment  also  against  sureties. 

171.  Costs  on  appeal. 

The  ease  has  been  tried  and  the  justice  has  rendered  judg- 
ment, we  will  say,  unfavorable  to  you.  You  feel  dissatisfied. 
In  the  language  of  the  statute,  you  "consider  yourself  ag- 
grieved" by  the  decision;  you  do  not  wish  the  matter  to  end 
at  this  stage.  Nor  does  it  have  to  end.  You  have  the  right 
of  appeal  to  the  superior  court — a  right,  however,  which  must 
be  exercised  within  definite  restrictions  and  limits,  and  the 
first  of  these  is 

§  162.    THE  AMOUNT  IN  CONTROVERSY. 

Any  person  considering  himself  aggrieved  by  the 
judgment  or  decision  of  a  justice  of  the  peace  in  a  civil 
action  may,  in  person  or  by  his  agent,  appeal  therefrom 
to  the  superior  court  of  the  same  county  where  the  judg- 
ment was  rendered  or  the  decision  made:  Provided, 
there  shall  be  no  appeal  allowed  unless  the  amount  in 
controversy  exclusive  of  costs,  shall  exceed  the  sum  of 
twenty  dollars.  [1910.] 

§  163.    HOW  THE  APPEAL  IS  TAKEN. 

The  appeal  must  be  taken  within  twenty  days  after  the 
judgment  is  rendered  or  the  decision  made.  The  appellant 
must  serve  a  notice  of  his  intention  to  appeal  upon  the  jus- 
tice of  the  peace.  And  a  copy  upon  the  adverse  party.  The 
notice  of  appeal  should  be  in  plain  terms,  specifying  the  cause, 


THE   APPEAL.  81 

venue,  parties  and  time.  The  appellant  must  then  file  a  bond, 
in  a  sum  equal  to  twice  the  amount  of  the  judgment  and 
costs,  securing  the  appellant  to  pay  what  costs  may  be  taxed 
against  him  on  appeal. 

Such  appeal  shall  be  taken  by  filing  a  notice  of  appeal 
with  the  justice  and  serving  a  copy  on  the  adverse 
party  or  his  attorney,  and,  unless  such  appeal  be  by 
a  county,  city  or  school  district,  filing  a  bond  or  under- 
taking, as  herein  provided,  within  twenty  days  after 
the  judgment  is  rendered  or  the  decision  made.  No 
appeal,  except  when  such  appeals  are  by  a  county,  city 
or  school  district,  shall  be  allowed  in  any  case  unless  a 
bond  or  undertaking  shall  be  executed  on  the  part  of 
the  appellant  and  filed  with  and  approved  by  the  jus- 
tice, with  one  or  more  sureties,  in  the  sum  of  one  hun- 
dred dollars,  to  the  effect  that  the  appellant  will  pay 
all  costs  that  may  be  awarded  against  him  on  the  ap- 
'  peal;  or  if  a  stay  of  proceedings  before  the  justice  be 
claimed,  except  by  a  county,  city  or  school  district  a 
bond  or  undertaking,  with  two  or  more  sureties  to  be 
approved  by  the  justice,  in  a  sum  equal  to  twice  the 
amount  of  the  judgment  and  costs,  to  the  effect  that 
the  appellant  will  pay  such  judgment,  including  costs, 
as  may  be  rendered  against  him  on  the  appeal.  [1911.] 

§  164.    APPEAL  STAYS  PROCEEDINGS. 

The  effect  of  appeal,  properly  made,  is  to  stay  proceedings 
in  the  cause,  such  as  execution  of  the  judgment  appealed 
from,  until  the  superior  court  has  had  the  opportunity  of 
passing  upon  the  appeal. 

Upon  appeal  being  taken  and  a  bond  filed  to  stay  all 
proceedings,  the  justice  shall  allow  the  same  and  make 
an  entry  of  such  allowance  in  his  docket,  and  all  further 
proceedings  on  the  judgment  before  the  justice  shall 
thereupon  be  suspended ;  and  if  in  the  meantime  execu- 
tion shall  have  been  issued,  the  justice  shall  give  the 
appellant  a  certificate  that  such  appeal  has  been  al- 
lowed. [1912.] 
6 


82  JUSTICE  OF  THE  PEACE  GUIDE. 

FORM. 

APPEAL  BOND. 
[Court  and  Cause.] 

Know  all  men  by  these  presents,  that  we,  John 
Jones,  as  principal,  and  William  Smith  and  Thomas " 
Robinson,  as  sureties,  are  held  and  firmly  bound  unto 
Edward  Rash,  the  plaintiff  above  named,  in  the  full 
sum  of  one  hundred  dollars,  lawful  money  of  the  United 
States,  for  which  payment,  well  and  truly  to  be  made, 
we  bind  ourselves  and  our  and  each  of  our  heirs,  execu- 
tors and  administrators,  jointly  and  severally,  firmly 
by  these  presents. 

Sealed  with  our  seals  and  dated  this  3d  day  of  May, 
1910. 

The  condition  of  this  obligation  is  such  that  whereas 
on  the  23d  day  of  April,  1910,  J  P,  Esq.,  one  of  the 
justices  of  the  peace  in  and  for  said  King  County,  did 
render  a  judgment  in  the  above-entitled  cause  in  favor 
of  said  plaintiff,  Richard  Rash,  and  against  said  de- 
fendant, John  Jones,  for  the  sum  of  $50,  and  whereas 
the  said  John  Jones  has  given  due  and  proper  notice 
that  he  appeals  from  the  said  judgment  to  the  Superior 
Court  of  said  county:  Now,  therefore,  if  the  said  John 
Jones  shall  pay  such  judgment,  including  costs,  as  may 
be  rendered  against  him  on  appeal,  then  this  obligation 
shall  become  void;  otherwise,  to  remain  in  full  force 
and  effect. 

Dated,  signed,  etc. 

§  165.  EXECUTION  RECALLED  BY  APPEAL. 

If  the  officer  having  the  writ  of  execution  shall  have  pro- 
ceeded to  carry  out  the  order  and  shall  have  taken  the  prop- 
erty of  the  defendant  on  execution,  he  will  be  obliged  to 
release  the  same  on  being  presented  with  the  certificate  of 
appeal  as  above. 

On  such  certificate  being  presented  to  the  officer  hold- 
ing the  execution,  he  shall  forthwith  release  the  prop- 
erty of  the  defendant  that  may  have  been  taken  on 
execution;  and  if  the  body  of  the  defendant  have  been 
taken  on  execution  he  shall  be  discharged  from  impris- 
onment. [1913.] 

§  166.    THE  TRANSCRIPT. 

When  the  cause  goes  up  to  the  superior  court  for  review, 
all  the  entries  made  in  the  justice's  docket  concerning  the 


APPEAL. 


83 


action  must  be  transcribed  and  certified  to  the  upper  court, 
together  with  all  the  process  and  papers  filed  with  the  justice. 

Within  ten  days  after  the  appeal  has  been  taken  in  a 
civil  action  or  proceeding,  the  appellant  shall  furnish 
the  superior  court  with  a  transcript  of  all  entries  made 
in  the  justice 's  docket  relating  to  the  case,  together  with 
all  the  process  and  other  papers  relating  to  the  action 
and  filed  with  the  justice,  which  shall  be  certified  by 
such  justice  to  be  correct,  and  upon  filing  of  such  tran- 
script, the  superior  court  shall  become  possessed  of  the 
cause,  and  shall  proceed  in  the  same  manner  as  near 
as  may  be,  as  in  actions  originally  commenced  in  that 
court,  except  as  herein  otherwise  provided.  [1914.] 

FORM. 
No 

In  Justice's  Court. 

'Before  John  E.  Carroll,  Justice  of  the  Peace,  ra  and  for 
Seattle  Precinct,  King  County,  State  of  Washing- 
ton. 
State  of  Washington, 

County  of  King, — ss. 


Attorney! 

Cost  Book  J.  P. 
Date  Fees  Paid. 

Amount 
Paid 

C.  B. 
Paid 

By    Whom 
Paid 

Plaintiff. 
Tersus 

EE  CIS  TRY  FUND 
Beceired 

Disbursed 

Defendant. 

Nature  of  Action 


191.. 

Complaint 
day  

filed  and  notice 
19 

issued.    Return 
....,9:30A.M. 

84  JUSTICE  OF  THE  PEACE  GUIDE. 

CERTIFICATE  OF  TRANSCRIPT  OF  JUDGMENT. 
[Court  and  Cause.] 

[Exact  Copy  from  the  Docket  of  the  Judgment.] 
[Venue.] 

I  hereby  certify  that  I  have  compared  the  foregoing 
with  the  original  entry  of  judgment  rendered  by  me  in 
the  above-entitled  cause,  and  that  the  same  is  a  true 
and  correct  transcript  therefrom  and  of  the  whole 
thereof,  as  the  same  appears  from  my  docket. 

Dated  at  Seattle,  King  County,  this  1st  day  of  August, 
1911. 

J   P. 

§  167.    THE  SAME  PLEADINGS  AS  IN  LOWER  COURT. 

The  issue  before  the  justice  shall  be  tried  in  the  su- 
perior court  without  other  or  new  pleadings,  unless 
otherwise  directed  by  the  court.  [1915.] 

§  168.    SUPERIOR      COURT     MAY     COMPEL    TRAN- 
SCRIPT. 

Upon  an  appeal  being  taken  and  allowed  the  superior 
court  may,  by  rule  and  attachment,  compel  the  justice 
to  make  and  deliver  to  the  appellant  a  certified  copy 
of  the  proceedings  upon  paying  to  such  justice  the  fees 
allowed  by  law  for  making  such  transcript,  and  when- 
ever the  court  is  satisfied  that  the  return  of  the  justice 
is  substantially  erroneous  or  defective,  it  may,  by  rule 
and  attachment,  compel  him  to  amend  the  same. 
[1916.] 

§  169.  DEFECTIVE  BOND— HOW  CURED. 

If  the  appellant  should  file  a  defective  bond  in  the  cause, 
the  adverse  party  cannot  take  advantage  of  that  fact  if  the 
appellant  make  and  file  in  the  superior  court  a  proper  bond. 

No  appeal  allowed  by  a  justice  shall  be  dismissed  on 
account  of  the  bond  being  defective,  if  the  appellant 
will,  before  the  motion  is  determined,  execute  and  file 
in  the  superior  court  such  a  bond  as  he  should  have 
executed  at  the  time  of  taking  the  appeal,  and  pay  all 
costs  that  shall  have  accrued  by  reason  of  such  defect. 
[1917.] 

§  170.    JUDGMENT  ALSO  AGAINST  SURETIES. 

In  all  cases  of  appeal  to  the  superior  court  if,  on  the 
trial  anew  in  such  court,  the  judgment  be  against  the 


THE  APPEAI*  85 

appellant,  in  whole  or  in  part,  such  judgment  shall  be 
rendered  against  him  and  his  sureties  in  the  bond  for 
the  appeal.  [1918.] 

§  171.     COSTS  ON  APPEAL. 

If  the  party  appellant  does  not  recover  a  more  favorable 
judgment  in  the  higher  court,  he  must  pay  all  costs. 

In  all  civil  actions  tried  before  a  justice  of  the  peace, 
in  which  an  appeal  shall  be  taken  to  the  superior  court, 
and  the  party  appellant  shall  not  recover  a  more  favor- 
able judgment  in  the  superior  court  than  before  the  jus- 
tice of  the  peace,  such  appellant  shall  pay  all  costs. 

FORM. 
INDEMNITY  BOND. 

Know  All  Men  by  These  Presents,  that  we , 

as  principal,  and and ,  as  sureties,  of 

,  in  the  county  of and  state  of  Wash- 
ington, are  jointly  and  severally  indebted  unto 

in  the  sum  of   dollars,  lawful  money  of  the 

United  States,  to  be  paid  to  the  said ,  heirs  or 

assigns ;  for  which  payment,  well  and  truly  to  be  made, 
we  jointly  and  severally  bind  ourselves,  our  and  each 
of  our  heirs,  executors,  administrators  and  assigns, 

firmly  by  these  presents.    Signed  this    day  of 

,19 

The  condition  of  the  above  and  foregoing  bond  and 
obligation  is  such  that, 

Whereas,  the  said did,  on  the day  of 

,19....,  

Now,  therefore,  if  the  above-bounden shall 

jointly  and  severally  well  and  truly  save,  keep  and 

bear  harmless,  and  indemnify  the  same   of 

and  from  all  harm,  expense,  trouble,  damage,  costs, 
suits,  actions,  judgments  and  executions,  which  shall 
or  may  at  any  time  arise,  come  or  be  brought  against 

or  suffered  or  expended  by arising  from  any 

of  the  matters  referred  to  herein,   ,  then  this 

obligation  to  be  null  and  void;  otherwise  to  be  and 
remain  in  full  force  and  effect. 

[Seal.] 

[Seal.] 

[Seal.] 

Signed  and  delivered  in  presence  of 


[Acknowledgment.] 


86  JUSTICE  OP  THE  PEACE  GUIDE, 


'CHAPTER  XL 
EXECUTIONS  UPON  JUDGMENTS. 

S  172.  Limit  of  five  years. 

§  173.  Execution — How  directed. 

8  174.  Indorsement  of  writ. 

§  175.  Notice  of  Bale  »f  goods. 

$  176.  Return  of  sale. 

§  177.  Officer  not  to  purchase  at  sale. 

§  178.  Claim  of  third  person. 

§  179.  Alias  executions  (renewal). 

8  180.  Stay  of  execution. 

§  181.  Bond  for  stay. 

I  182.  Execution  revoked. 

8  183.  Execution  against  sureties. 

§  184.  Substitution  of  surety. 

§  185.  Offsetting  mutual  judgments. 

§  186.  Execution  for  the  balance  of  mutual  judgment* 

§  187.  Offset  of  judgment  rendered  by  another  justice. 

§  188.  Execution  issued  by  justice's  successor. 

8  189.  Arrest  of  defendant  on  return  of  execution. 

I  190.  Execution  for  costs. 

S  191.  Claimant  may  have  any  remedy. 

§  192.  Examination  of  garnishees. 

§  193.  Statutory  exemptions. 

S  194.  Pension  money  exemption, 

§  195.  Insurance  money  exempt. 

S  196.  Life  insurance  money  exempt. 

§  197.  Cemetery  lots  exempt. 

8  198.  Who  is  a  householder. 

§  199.  Procedure  on  claiming  exemptions. 

It  has  been  said  that  almost  any  lawyer  can  get  a  judg- 
ment but  that  it  takes  a  good  lawyer  to  get  the  money  after 
judgment.  This  is  more  a  matter  of  energy  than  anything 
else,  for  the  procedure  upon  execution  is  not  peculiarly  in- 
tricate. 

There  are  four  kinds  of  executions:  Against  the  property 
of  the  debtor,  the  person  of  the  debtor  and  for  possession  of 
personal  property  wrongfully  detained,  and  enforcing  a 
court  order. 

There  shall  be  four  kinds  of  execution:  One  against 
the  property  of  the  judgment  debtor;  another  against 


EXECUTIONS  UPON  JUDGMENTS.  87 

his  person;  the  third  for  the  delivery  of  the  possession 
of  personal  property,  or  such  delivery  with  damages 
for  withholding  the  same,  and  the  fourth  commanding 
the  enforcement  of  or  obedience  to  any  special  order 
of  the  court.  And  in  all  cases  there  shall  be  an  order 
to  collect  the  costs.  [611.] 

FORMS  OF  EXECUTION. 

State  of  Washington, 
County  of , — ss. 

To  the  Sheriff  or  Any  Constable  of  Said  County: 

Whereas,  judgment  against  C  D  for  the  sum  of 

dollars  and dollars,  costs  of  suit,  was  recovered 

on  the day  of ,  19. . . .,  before  the  under- 
signed, one  of  the  justices  of  the  peace  in  and  for  said 
county,  at  the  suit  of  A  B.  These  are,  therefore,  in  the 
name  of  the  state  of  Washington,  to  command  you  to 
levy  on  the  goods  and  chattels  of  the  said  C  D  (except- 
ing such  as  the  law  exempts),  and  make  sale  thereof 
according  to  law,  to  the  amount  of  said  sum  and  costs 
upon  this  writ,  and  the  same  return  to  me  within  thirty 
days,  to  be  rendered  to  the  said  A  B  for  his  debt,  inter- 
ests and  costs. 

Given  under  my  hand  this   day  of  , 

19 

JP, 

Justice  of  the  Peace. 

EXECUTION  AGAINST  THE  BODY. 

[Court  and  Cause.] 

To  the  Sheriff  or  Any  Constable  of  Said  County,  Greet- 
ing: 

Whereas,  judgment  against  William  James  for  the 
sum  of  twenty  dollars  and  thirteen  dollirs,  costs  of 
suit,  was  recovered  on  the  1st  day  of  August,  1911, 
before  the  undersigned,  one  of  the  justices  of  the  peace 
in  and  for  said  county,  at  the  suit  of  James  Salt  on,  and 
an  execution  against  his  property  returned  unsatisfied; 
these  are,  therefore,  in  the  name  of  the  state  of  Wash- 
ington, to  command  you  to  take  the  body  of  the  said 
Vv  illiam  James,  and  him  convey  and  deliver  to  the  keeper 
of  the  jail  of  said  county,  who  is  hereby  commanded 
to  receive  and  keep  the  said  William  James  in  safe 


88  JUSTICE  OF  THE  PEACE  GUIDE. 

custody  in  prison  until  the  aforesaid  sum  and  all  legal 
expenses  be  paid  and  satisfied,  or  until  he  be  discharged 
by  due  course  of  law;  and  of  this  writ  make  due  return 
within  thirty  days. 

Given  under  my  hand  this  llth  day  of  September, 
1911. 

JP. 

§  172.    LIMIT  OF  FIVE  YEARS. 

But  there  may  be  no  execution  after  the  lapse  of  five  years. 

Execution  for  the  enforcement  of  a  judgment  in  a 
justice's  court  may  be  issued  on  the  application  of  the 
party  entitled  thereto,  in  the  manner  hereinbefore  pre- 
scribed, but  after  the  lapse  of  five  years  from  the  date 
of  the  judgment,  no  execution  shall  issue  except  by 
leave  of  the  justice  before  whom  such  judgment  may 
be,  upon  reasonable  notice  to  the  defendant.  [1876.] 

The  first  step  in  executing  judgment  is  to  obtain  a  writ  of 
execution  from  the  justice  of  the  peace.  This  is  a  simple 
form,  with  a  statement  of  the  parties  to  the  case,  the  amount 
of  the  judgment,  etc.,  and  on  the  back  a  notation  of  the  costs 
collectible,  including  the  costs  of  the  writ. 

The  writ  of  execution  shall  be  issued  in  the  name 
of  the  state  of  Washington,  and  subscribed  by  the  jus- 
tice, and  shall  be  directed  to  the  sheriff  or  any  con- 
stable of  the  county  where  the  justice  resides,  and  shall 
intelligently  refer  to  the  judgment,  stating  the  court, 
the  county  where  judgment  was  rendered,  the  names  of 
the  parties,  the  amount  of  the  judgment  if  it  be  for 
money,  and  the  amount  actually  due  thereon,  and  shall 
require  substantially  as  follows: 

1.  If  it  be  against  the  property  of  the  judgment 
debtor,  it  shall  require  the  officer  to  satisfy  the  judg- 
ment, with  interest,  out  of  the  personal  property  of  the 
debtor; 

2.  If  it  be  against  the  person  of  the  judgment  debtor, 
it  shall  require  the  officer  to  arrest  such  debtor,  and 
commit  him  to  the  jail  of  the  county  until  he  shall  pay 
the  judgment,  with  interest,  or  be  discharged  according 
to  law; 

3.  If  it  be  for  the  delivery  of  the  possession  of  per- 
sonal property,  it  shall  require  the  officer  to  deliver  the 
possession  of  the  same,  particularly  describing  it,  to 


EXECUTIONS  UPON  JUDGMENTS.  89 

the  party  entitled  thereto,  and  may,  at  the  same  time, 
require  the  officer  to  satisfy  any  charges  or  damages 
recovered  by  the  same  judgment,  out  of  the  personal 
property  of  the  party  against  whom  it  was  rendered, 
and  the  value  of  the  property  for  which  the  judgment 
was  recovered,  shall  be  specified  therein.  And  in  all 
cases  the  execution  shall  require  the  collection  of  all 
interest,  costs  and  increased  costs  thereon.  [513.] 

FORM. 

EXECUTION  WRIT— GENERAL. 
[Court  and  Cause.] 

To  the  Sheriff  or  Any  Constable  of  Said  County,  Greet- 
ing: 

Whereas,  judgment  against  Timothy  Winn  for  the 
sum  of  ten  dollars  and  $7  costs  of  suit  was  recov- 
'  ered  on  the  1st  day  of  August,  1911,  before  the  under- 
signed, one  of  the  justices  of  the  peace  within  and  for 
said  county,  at  the  suit  of  Wm.  Chisolm.  These  are, 
therefore,  in  the  name  of  the  state  of  Washington,  to 
command  you  to  levy  on  the  goods  and  chattels  of  the 
said  Timothy  Winn  (excepting  such  as  the  law  exempts) 
and  make  sale  thereof  according  to  law,  to  the  amount 
of  said  sum  and  costs  upon  this  writ,  and  return  the 
same  to  me  within  thirty  days,  to  be  rendered  to  the 
said  Wm.  Chisolm  for  his  debt,  interests  and  costs. 

Given  under  my  hand  this  15  day  of  August,  1911. 

J  P. 
§  173.    EXECUTION— HOW  DIRECTED. 

The  execution  shall  be  directed  (except  when  it  is 
otherwise  specially  provided)  to  the  sheriff  or  any  con- 
stable of  the  county  where  the  justice  resides;  shall 
be  dated  on  the  day  it  is  issued,  and  made  returnable 
within  thirty  days  from  the  date;  and  it  shall  be 
against  the  goods  and  chattels  of  the  person  against 
whom  the  same  is  issued.  [1879.] 

The  justice  and  the  constable  should  both  indorse  the  writ 
of  execution  as  follows: 

§  174.    INDORSEMENT  OF  WRIT. 

Before  any  execution  shall  be  delivered  the  justice 
shall  state  in  his  docket,  and  also  on  the  back  of  the 
execution,  the  amount  of  the  debt,  or  damages  and 


90  JUSTICE  OP  THE  PEACE  GUIDE. 

costs,  and  of  the  fees  due  to  each  person  separately, 
and  the  officer  receiving  such  execution  shall  indorse 
the  time  of  the  reception  of  the  same.  [1880.] 

We  will  assume  that  the  execution  is  the  common  one 
against  goods  and  chattels.  The  officer,  with  the  writ  of 
execution  properly  indorsed,  proceeds  to  the  place  where  the 
debtor's  goods  are  situated,  takes  them  into  his  custody,  and 
advertises  them  for  sale. 

§  175.  NOTICE  OF  SALE  OF  GOODS. 

The  officer,  after  taking  goods  and  chattels  into  his 
custody  by  virtue  of  an  execution,  shall,  without  delay, 
give  public  notice  by  at  least  three  advertisements,  put 
up  at  three  public  places  in  the  county  of  the  time  and 
place,  when  and  where  they  will  be  exposed  for  sale. 
Such  notice  shall  describe  the  goods  and  chattels  taken, 
and  shall  be  put  up  at  least  ten  days  before  the  day  of 
sale.  [1882.] 

FORM. 
NOTICE  OF  SALE  ON  EXECUTION. 

[Court  and  Cause.] 

By  virtue  of  a  writ  of  execution  issued  by  J  P,  Esq., 
a  justice  of  the  peace  of  said  King  County,  and  to  me 
directed  and  delivered,  for  a  judgment  rendered  by  said 
justice  cf  the  peace  on  the  1st  day  of  August,  1911,  in 
favor  of  Henry  Biggs,  plaintiff,  and  against  Richard 
Wright,  defendant,  for  the  sum  of  forty  dollars,  and 
the  sum  of  seven  dollars  costs  of  suit  and  five  dollars  at- 
torney's fee,  I  have  levied  upon  the  following  described 
personal  property,  to  wit:  [Describe  property.] 

Notice  is  hereby  given  that  on  the  1st  day  of  Novem- 
ber, 1911,  at  the  hour  of  9:30  o'clock  in  the  forenoon  of 
said  day,  at  the  front  door  of  the  courthouse  of  King 
County,  in  the  city  of  Seattle,  said  county,  I  will  sell 
all  the  right,  title  and  interest  of  the  said  Richard 
Wright,  defendant,  in  and  to  the  above-described  per- 
sonal property,  at  public  auction,  to  the  highest  and 
best  bidder  for  cash,  to  satisfy  said  execution  and  all 
costs. 

Dated  and  signed  this  1st  day  of  September,  1911. 

HENRtf  BADGE, 
Constaole. 


EXECUTIONS  UPON  JUDGMENTS.  91 

§  176.    RETURN  OF  SALE. 

The  chattels  on  such  sale  are  sold  to  the  highest  bidder  and 
the  constable  makes  return  of  sale. 

At  the  time  and  place  so  appointed,  if  the  goods  and 
chattels  be  present  for  inspection  of  bidders,  the  officer 
shall  expose  them  to  sale  at  public  vendue  to  the  high- 
est bidder;  he  shall  return  the  execution  and  have  the 
money  before  the  justice  at  the  time  of  making  such 
return,  ready  to  be  paid  over  to  the  persons  respec- 
tively entitled  thereto.  [1883.] 

The  officer  shall  not  be  a  purchaser  at  such  sale. 

§  177.    OFFICER  NOT  TO  PURCHASE  AT  SALE. 

No  officer  shall  directly  or  indirectly  purchase  any 
goods  or  chattels  at  any  sale  made  by  him  upon  execu- 
tion, and  every  such  purchase  shall  be  absolutely  void. 
[1884.] 

Supposing,  however,  that  when  the  sheriff  or  constable 
goes  to  levy  upon  certain  goods  a  third  person,  against  whom 
the  plaintiff  has  no  action,  should  be  the  possessor,  or  claim 
to  be,  of  the  chattels:  In  that  case  the  new  claimant  must 
make  affidavit  of  ownership  and  serve  the  same  upon  the 
levying  officer,  who,  in  turn,  may  demand  an  indemnity  bond 
from  the  plaintiff,  thereafter  notifying  the  plaintiff  and  the 
court,  who  shall  thereupon  set  the  cause  for  trial. 

§  178.    CLAIM  OF  THIRD  PERSON. 

If  any  property  levied  on  be  claimed  by  any  other 
person  than  the  defendant  in  execution,  and  the  claim- 
ant make  affidavit  of  his  title  or  right  to  the  possession 
of  the  same,  stating  the  ground  of  such  title  or  right, 
and  serve  the  same  upon  the  sheriff  or  constable,  while 
the  property  is  in  his  possession,  said  sheriff  or  constable 
shall  not  be  bound  to  keep  the  property  unless  the 
plaintiff  on  demand  indemnify  him  in  the  same  manner 
as  provided  in  this  act  for  cases  where  property  held 
under  attachment  is  claimed  by  persons  not  parties  to 
the  suit  and  when  such  claim  is  made,  the  sheriff  or 
constable  shall  immediately  file  the  claimant's  affidavit 
with  the  justice,  and  notify  the  plaintiff  thereof,  and 
unless  the  property  be  at  once  released,  the  justice  shall 
set  the  case  for  trial  upon  the  allegations  of  the  claim- 


92  JUSTICE  OP  THE  PEACE  GUIDE. 

ant's  affidavit,  and  the  case  shall  proceed  and  be  deter- 
mined in  the  same  manner  as  provided  in  this  act  for 
cases  where  property  held  under  attachment  is  claimed 
by  persons  not  parties  to  the  suit.  [1888.] 

§  179.    ALIAS  EXECUTIONS  (RENEWAL). 

This  is  simply  a  renewal  of  the  execution  until  judgment 
shall  have  been  executed. 

If  an  execution  be  not  satisfied,  it  may,  at  the  request 
of  the  plaintiff,  be  renewed  from  tune  to  time  by  the 
justice  who  issues  the  same,  or  by  the  justice  to  whom  his 
docket  is  transferred,  by  an  indorsement  thereon  to  that 
effect,  signed  by  him  and  dated  when  the  same  shall 
be  made.  If  any  part  of  such  execution  has  been  satis- 
fied the  indorsement  of  renewal  shall  express  the  sum 
due  on  the  execution.  Every  such  indorsement  shall 
renew  the  execution  in  full  force  in  all  respects  for 
thirty  days,  and  no  longer,  and  an  entry  of  such  re- 
newal shall  be  made  in  the  docket  of  the  justice. 
[1881.] 

§  180.    STAY  OF  EXECUTION. 

The  proceedings  on  execution  may  be  stayed  for  a  period 
of  from  one  to  two  months,  according  to  the  value  of  the 
judgment,  by  the  filing  of  a  stay  bond,  with  proper  sureties. 

The  execution  upon  a  judgment  by  a  justice  of  the 
peace  may  be  stayed  in  the  manner  hereinafter  pro- 
vided, upon  reasonable  notice  to  the  opposite  party, 
and  for  the  following  periods  of  time,  to  be  calculated 
from  the  date  of  the  judgment: 

1.  If  the  judgment  be  for  any  sum  not  exceeding 
twenty-five  dollars,  exclusive  of  costs,  one  month. 

2.  If  it  be  for  more  than  twenty-five  dollars,  two 
months.     [1867.] 

§  181.    BOND  FOR  STAY. 

To  entitle  any  person  to  such  stay  of  execution  some 
responsible  person,  to  be  approved  by  the  justice,  and 
not  being  a  party  to  the  judgment,  must,  within  five 
days  after  rendering  of  the  judgment,  enter  into  a 
bond,  before  the  justice,  to  the  adverse  party,  in  a 
sufficient  sum  to  secure  the  payment  of  the  judgment 
and  costs  conditioned  to  be  void  upon  such  payment, 
at  the  expiration  of  the  stay.  [1868.] 


EXECUTIONS  UPON  JUDGMENTS.  93 

FORM. 
BOND  TO  STAY  EXECUTION. 

[Court  and  Cause.] 

Whereas,  James  Sutton  has  obtained  a  judgment  be- 
fore J  P,  Esq.,  one  of  the  justices  of  the  peace  in  and 
for  Pierce  County,  on  the  1st  day  of  August,  1911, 
against  William  James,  for  thirty- three  dollars;  now, 
therefore,  I,  John  Willing,  acknowledge  myself  bound 
to  the  said  James  Sutton  in  the  sum  of  seventy-five  dol- 
lars, this  bond  to  be  void  if  such  judgment  shall  be  paid 
at  the  expiration  of  two  months  after  the  time  it  was 
rendered. 

Dated  the  3d  day  of  August,  1911. 

JOHN  WILLING. 

Now,  when  the  justice  issues  the  stay  of  execution,  the 
effect  of  it  is  to  revoke  and  recall  the  execution  which  may 
have  been  issued,  releasing  the  goods  if  they  have  been  taken 
and  discharging  the  defendant  if  he  has  been  arrested. 

§  182.    EXECUTION  REVOKED. 

If  judgment  be  stayed  in  the  manner  above  provided, 
after  an  execution  has  been  issued  thereon,  the  justice 
shall  revoke  such  execution,  in  the  same  manner,  and 
with  like  effect  as  he  is  hereinafter  directed  to  revoke  an 
execution,  after  an  appeal  has  been  allowed;  and  if  the 
defendant  have  been  committed,  shall  order  him  to  be 
discharged  from  custody.  [1872.] 

§  183.    EXECUTION  AGAINST  SURETIES. 

If  at  the  expiration  of  such  stay,  the  judgment  be  not 
paid,  the  execution  shall  issue  against  both  the  principal 
and  bail.  If  the  principal  do  not  satisfy  the  execution, 
and  the  officer  cannot  find  sufficient  property  belonging 
to  him  upon  which  to  levy,  he  shall  levy  upon  the  prop- 
erty of  the  bail,  and  in  his  return  shall  state  what 
amount  of  money  collected  by  him  on  the  execution,  was 
collected  from  the  bail,  and  the  time  when  the  same  was 
received.  [1870.] 


94  JUSTICE  OF  THE  PEACE  GUIDE. 

FORM. 
EXECUTION  AGAINST  PRINCIPAL  AND  SURETY. 

State  of  Washington, 
County  of ,  — ss. 

To  the  Sheriff  or  Any  Constable  of  Said  County : 

Whereas,  judgment  against  C  D  for  the  sum  of 

dollars  and  for dollars,  costs  of  suit,  was  recov- 
ered on  the day  of  ,  19 ,  before  the 

undersigned,  one  of  the  justices  of  the  peace  in  and  for 
said  county,  at  the  suit  of  A  B;  and,  whereas,  on  the 

day  of ,19 ,  E  F  became  surety  to  pay 

said  judgment  and  costs,  in month  from  the  date 

of  the  judgment  aforesaid,  agreeably  to  law,  in  the  pay- 
ment of  which  the  said  C  D  and  E  F  have  failed ;  these 
are  therefore  in  the  name,  etc.  [as  in  the  common  form]. 

§  184.    SUBSTITUTION  OF  SURETY. 

After  the  return  of  such  execution,  the  bail  shall  be 
entitled,  on  application  to  the  justice,  to  have  the  judg- 
ment, or  so  much  thereof  as  may  have  been  collected 
from  him  in  satisfaction  of  the  execution,  transferred 
to  his  surety,  and  he  may  collect  the  same  from  the  de- 
fendant by  execution,  together  with  the  interest  at  the 
rate  of  twelve  per  cent  per  annum.  [1871.] 

§  185.    OFFSETTING  MUTUAL  JUDGMENTS. 

Where  there  are  mutual  judgments,  one  judgment  may  be 
set  off  against  the  other. 

If  there  be  mutual  justices'  judgments  between  the 
same  parties,  upon  which  the  time  for  appealing  has 
elapsed  on  judgment,  on  the  application  of  either  party, 
and  reasonable  notice  given  to  the  adverse  party,  one 
may  be  set  off  against  the  other,  by  the  justice  before 
whom  the  judgment  against  which  the  setoff  is  proposed 
may  be.  [1873.] 

§  186.    EXECUTION  FOR  THE  BALANCE  OF  MUTUAL 
JUDGMENTS. 

If  any  justice  shall  set  off  one  judgment  against  an- 
other, he  shall  make  an  entry  thereof  on  his  docket,  and 
execution  shall  issue  only  for  the  balance  which  may  be 
due  after  such  setoff.  If  a  justice  shall  allow  a  tran- 


EXECUTIONS  UPON  JUDGMENTS.  95 

script  of  a  judgment  rendered  by  another  justice  to  be 
set  off,  he  shall  file  such  transcript  among  the  papers 
relating  to  the  judgment  in  which  it  is  allowed  in  setoff. 
If  he  shall  refuse  such  transcript  as  a  setoff,  he  shall  so 
certify  on  the  transcript,  and  return  the  same  to  the 
party  who  offered  it.  [1875.] 

§  187.    OFFSET  OF  JUDGMENT  RENDERED  BY  AN- 
OTHER JUSTICE. 

Where  one  desires  to  offset  a  judgment  rendered  by  a  jus- 
tice other  than  the  one  issuing  the  writ  of  execution,  the  pro- 
cedure is  to  obtain  a  transcript  from  the  first  justice,  certi- 
fying that  the  judgment  is  unsatisfied  in  whole  or  in  part, 
and  that  no  appeal  has  been  taken  thereon. 

If  the  judgment  proposed  as  a  setoff  was  rendered  be- 
fore another  justice,  the  party  proposing  such  setoff 
-shall  produce  before  such  justice  a  transcript  of  such 
judgment,  upon  which  there  is  a  certificate  of  the  justice 
before  whom  such  may  be,  that  it  is  unsatisfied  in  whole 
or  in  part,  and  that  there  is  no  appeal,  and  that  such 
transcript  was  obtained  for  the  purpose  of  being  set  off 
against  the  judgment  to  which  it  is  offered  as  a  setoff. 
The  justice  granting  such  transcript  shall  make  an  entry 
thereof  on  his  docket,  and  all  further  proceedings  on 
such  judgment  shall  be  stayed,  unless  such  transcript  b« 
returned  with  the  proper  justice's  certificate  thereon 
that  it  has  not  been  allowed  in  setoff.  [1874.] 

§  188.    EXECUTION  ISSUED  BY  JUSTICE'S  SUCCES- 
SOR. 

A  judgment  rendered  by  a  justice  may  be  executed  upon 
the  writ  of  his  successor  in  office. 

When  any  judgment  shall  have  been  rendered  by  any 
justice  of  the  peace,  and  the  same  not  be  satisfied  dur- 
ing his  continuance  in  office,  and  the  docket  of  such  jus- 
tice shall  have  been  transferred  to  another  justice,  or  to 
the  successor  of  the  justice  rendering  such  judgment, 
the  justice  to  whom  the  docket  shall  be  delivered  shall 
issue  execution  upon  such  unsatisfied  judgment  in  the 
same  manner,  and  with  like  effect  as  if  he  himself  had 
rendered  the  judgment.  [1877.] 


96  JUSTICE  OP  THE  PEACE  GUIDE. 

§  189.  ARREST  OF  DEFENDANT  ON  RETURN  OF 
EXECUTION. 

If  the  action  be  one  in  which  the  defendant  might 
have  been  arrested  upon  a  warrant,  an  execution  against 
the  person  of  such  defendant  may  be  issued  after  the 
return  of  an  execution  against  his  property  unsatisfied 
in  whole  or  in  part.  An  execution  against  the  person 
may  likewise  be  issued  after  such  return,  where  the  de- 
fendant has  been  arrested  upon  a  warrant  and  not  dis- 
charged according  to  law.  [1885.] 

§  190.    EXECUTION  FOR  COSTS. 

Any  justice  of  the  peace  may  issue  an  execution 
against  the  prevailing  party,  to  collect  fees  and  costs 
for  vtfrich  such  party  may  be  liable,  after  an  execution 
has  been  first  issued  against  the  other  party,  and  re- 
turned "no  property  found."  [1887.] 

§  191.     CLAIMANT  MAY  HAVE  ANY  REMEDY. 

Nothing  contained  in  the  last  section  shall  be  so  con- 
strued as  to  prevent  the  claimant  of  property  levied  on 
by  execution  from  resorting  to  any  legal  remedy  he  may 
choose  to  pursue,  instead  of  proceeding  in  the  manner 
therein  prescribed.  [1889.] 

§  192.    EXAMINATION  OF  GARNISHEES. 

If  there  be  no  property  found,  or  if  the  goods  and 
chattels  levied  on  be  not  sufficient  to  satisfy  such  execu- 
tion, the  officer  shall,  on  demand  of  the  plaintiff,  summon 
in  writing,  as  garnishees,  such  persons  as  may  be  named 
to  (him  by)  the  plaintiff,  or  his  agent,  to  appear  before 
the  justice  on  the  return  day  of  the  execution,  to  answer 
such  interrogatories  as  may  be  put  to  them,  touching 
their  liabilities  as  garnishees,  and  the  like  proceedings 
shall  be  had  thereon  before  the  justice  to  final  judgment 
as  in  the  proceedings  by  attachment.  [1886.] 

§  193.    STATUTORY  EXEMPTIONS. 

The  law  has  wisely  placed  restrictions  upon  the  scope  of 
the  writ  of  execution.  Not  everything  a  man  has  may  be 
taken  to  satisfy  a  debt.  On  the  contrary,  the  law  aims  to 
preserve  to  him  enough  for  the  support  of  himself  and 
family,  even  though  the  creditor's  execution  go  for  the  time, 


EXECUTIONS  UPON  JUDGMENTS.  97 

at  least,  unsatisfied.    The  following  exemptions  should  be 
carefully  noticed: 

The  following  property  shall  be  exempt  from  execu- 
tion and  attachment,  except  as  hereinafter  specially  pro- 
vided: 

1.  All  wearing  apparel  of  every  person  and  family; 

2.  All  private  libraries,  not  to  exceed  five  hundred 
dollars  in  value,  and  all  family  pictures  and  keepsakes; 

3.  To  each  householder,  one  bed  and  bedding,  and  one 
additional  bed  and  bedding  for  each  additional  member 
of  the  family,  and  other  household  goods  and  utensils 
and  furniture  not  exceeding  five  hundred  dollars,  coin, 
in  value.    The  other  household  goods  and  utensils  and 
furniture  specified  above  shall  on  the  demand  of  the 
officer  having  the  execution  or  attachment  in  hand,  be 
selected  by  the  husband,  if  present,  if  not  present  they 
shall  be  selected  by  his  wife,  and  in  case  neither  husband 

'  nor  wife,  nor  other  person  entitled  to  the  exemption  by 
having  the  description  of  a  householder,  shall  be  present 
to  make  th3  selection,  then  the  sheriff  shall  make  a  selec- 
tion of  the  household  goods,  utensils  and  furniture  equal 
in  value  to  said  five  hundred  dollars,  and  shall  return 
the  same  as  exempt  by  inventory,  and  such  selection  by 
the  sheriff  or  other  person  described  above  shall  be 
prima  facie  evidence — 1.  That  such  household  goods, 
utensils,  and  furniture  are  exempt  from  execution  and 
attachment;  2.  That  the  value  of  the  property  so  se- 
lected is  not  over  five  hundred  dollars ; 

4.  To  each  householder,  two  cows,  with  their  calves, 
five  swine,  two  stands  of  bees,  thirty-six  domestic  fowls, 
and  provisions  and  fuel  for  the  comfortable  maintenance 
of  such  householder  and  family  for  six  months,  also  feed 
for  such  animals  for  six  months:  Provided,  That  in  case 
such  householder  shall  not  possess  or  shall  not  desire  to 
retain  the  animals  above  named,  he  may  select  from  his 
property  and  retain  other  property  not  to  exceed  two 
hundred  and  fifty  dollars,  coin,  in  value.    The  selection 
in  the  proviso  mentioned  shall  be  made  in  the  manner 
and  by  the  person  and  at  the  time  mentioned  in  subdi- 
vision three,  and  said  selection  shall  have  the  same  eif  ect 
as  selections  made  under  subdivision  three  of  this  sec- 
tion; 

5.  To  a  farmer,  one  span  of  horses  or  mulo-*,  with  har- 
ness, or  two  yoke  of  oxen,  with  yokes  aiiu  cli^ms,  and 

7 


98  JUSTICE  OP  THE  PEACE  GUIDE. 

one  wagon,  also  fanning  utensils  actually  used  about  the 
farm,  not  exceeding  in  value  five  hundred  dollars  in 
coin;  also  one  hundred  and  fifty  bushels  of  wheat,  one 
hundred  and  fifty  bushels  cf  cats  or  barley,  fifty  bushels 
of  potatoes,  ten  bushels  of  corn,  ten  bushels  of  peas,  and 
ten  bushels  of  onions  for  seeding  purposes ; 

6.  To  a  mechanic,  the  tools  and  instruments  used  to 
carry  on  his  trade  for  the  support  of  himself  and  family, 
also  material  used  in  his  trade,  not  exceeding  in  value 
five  hundred  dollars  in  coin; 

7.  To  a  physician,  his  library,  not  to  exceed  five  hun- 
dred dollars  in  coin;  also,  one  horse,  with  harness  and 
buggy;  the  instruments  used  in  his  practice,  and  medi- 
cines not  exceeding  in  value  two  hundred  dollars  in 
coin; 

8.  To  attorneys,   clergymen  and  other  professional 
men,  their  libraries,  not  exceeding  one  thousand  dollars 
in  coin  value;  also  office  furniture,  fuel  and  stationery, 
not  exceeding  in  value  two  hundred  dollars,  in  coin ; 

9.  All  firearms  kept  for  the  use  of  any  person  or 
family; 

10.  To  any  person,  a  canoe,  skiff  or  small  boat,  with 
its  oars,  sails  and  rigging,  not  exceeding  in  value  two 
hundred  and  fifty  dollars ; 

11.  To  a  person  engaged  in  lightering  for  his  support 
or  that  of  his  family,  one  or  more  lighters,  barges  or 
scows,  and  a  small  boat,  with  oars,  sails  and  rigging,  not 
exceeding  in  the  aggregate  two  hundred  and  fifty  dol- 
lars, in  coin,  value; 

12.  To  a  teamster  or  drayman  engaged  in  that  busi- 
ness for  the  support  of  himself,  or  his  family,  his  team, 
consisting  of  one  span  of  horses,  or  mules,  or  two  yoke 
of  oxen,  or  a  horse  and  mule,  with  harness,  yokes,  one 
wagon,  tru^ek,  cart,  or  dray; 

13.  To  a  person  engaged  in  the  business  of  logging  for 
his  support  or  that  of  his  family  three  yoke  of  work 
cattle  and  their  yokes,  and  axes,  chains,  implements  for 
the  business,  and  camp  equipments,  not  exceeding  three 
hundred  dollars,  coin,  in  value; 

14.  A  sufficient  quantity  of  hay,  grain,  or  feed  to  keep 
the  animals  mentioned  in  the  several  subdivisions  of  this 
section  for  six  weeks.    But  no  property  shall  be  exempt 
from  an  execution  issued  upon  a  judgment  for  the  price 
thereof,  or  any  part  of  the  price  thereof,  or  for  any  tax 
levied  thereon; 


EXECUTIONS  UPON  JUDGMENTS.  99 

Each  person  shall  be  entitled  to  select  the  property  to 
which  he  is  entitled  under  the  several  subdivisions  of 
this  section.  [563.] 

§  194.    PENSION  MONEY  EXEMPTION. 

Any  money  received  by  any  citizen  of  the  state  of 
Washington  as  a  pension  from  the  government  of  the 
United  States,  whether  the  same  be  in  the  actual  posses- 
sion of  such  person  or  be  deposited  or  loaned  by  him, 
shall  be  exempt  from  execution,  attachment,  or  seizure 
by  or  under  any  legal  process  whatever.  [566.] 

When  a  debtor  dies  or  absconds,  and  leaves  his  family 
any  money  exempted  by  the  last  preceding  section,  the 
same  shall  be  exempt  to  his  family  as  provided  in  said 
section.  [567.] 

§  195.    INSURANCE  MONEY  EXEMPT. 

Whenever  property  which  by  the  laws  of  this  state  is 
exempt  from  execution  or  attachment  is  insured  and 
the  same  is  destroyed  by  fire,  then  the  insurance  money 
coming  to  or  belonging  to  the  person  thus  insured,  to  an 
amount  equal  to  the  exempt  property  thus  destroyed, 
shall  be  exempt  from  execution  and  attachment.  [568.] 

§  196.    LIFE  INSURANCE  MONEY  EXEMPT. 

The  proceeds  or  avails  of  all  life  and  accident  insur- 
ance shall  be  exempt  from  all  liability  for  any  debt. 
[569.] 

§  197.    CEMETERY  LOTS  EXEMPT. 

Burial  lots  sold  by  such  [cemetery]  association  shall 
be  for  the  sole  purpose  of  interment  and  shall  be  exempt 
from  taxation,  attachment,  execution,  or  other  claims, 
liens  or  process  whatsoever,  if  used  as  intended,  exclu- 
sively for  burial  purposes,  and  in  no  wise  with  a  view 
to  profit.  [3647.] 

§  198.    WHO  IS  A  HOUSEHOLDER. 

A  householder,  as  designated  in  all  statutes  relating  to 
exemptions,  is  defined  to  be : — 

1.  The  husband  or  wife,  or  either; 

2.  Every  person  who  has  residing  with  him  or  her, 
and  under  his  or  her  care  and  maintenance,  either: — 


100  JUSTICE  OF  THE  PEACE  GUIDE. 

<a)  His  or  her  minor  child,  or  the  minor  child  of  his 
or  her  deceased  wife  or  husband; 

(b)  A  minor  brother  or  sister,  or  the  minor  child  of  a 
deceased  brother  or  sister; 

(c)  A  father,  mother,  grandfather  or  grandmother; 

(d)  The  father,  mother,  grandfather  or  grandmother 
of  deceased  husband  or  wife ; 

(e)  An  unmarried  sister,  or  any  other  of  the  relatives 
mentioned  in  this  section  who  has  attained  the  age  of 
majority,  and  are  unable  to  take  care  of  or  support  them- 
selves.   £565.] 

§  199.    PROCEDURE  ON  CLAIMING  EXEMPTIONS. 

As  a  rule,  when  current  wages  are  garnished  either  on  a 
judgment  or  otherwise,  the  exemption  is  claimed  by  the  hus- 
band making  and  filing  his  affidavit,  setting  forth  that  he  is 
a  householder,  that  he  has  a  wife  and  so  many  children  or 
persons  dependent  upon  him  for  support;  that  the  money 
garnished  is  for  current  wages  earned  from  such  a  date  to 
such  a  date,  and  that  they  are  exempt  under  the  law.  In 
other  classes  of  exemptions,  the  claims  are  made  as  follows: 

When  a  debtor  claims  personal  property  as  exempt, 
he  shall  deliver  to  the  officer  making  the  levy  an  item- 
ized list  of  all  the  personal  property  owned  or  claimed 
by  him,  including  money,  bonds,  bills,  notes,  claims  and 
demands,  with  the  residence  of  the  person  indebted  upon 
the  said  bonds,  bills,  notes,  claims,  and  demands,  and 
shall  verify  such  list  by  affidavit.  He  shall  also  deliver 
to  such  officer  a  list,  by  separate  items,  of  the  property 
.  he  claims  as  exempt.  If  the  husband  be  absent  or  in- 
capable of  acting  the  claim  may  be  made,  the  list  de- 
livered and  verified,  by  the  wife.  If  the  creditor,  his 
agent  or  attorney,  demand  an  appraisement  thereof,  two 
disinterested  householders  of  the  neighborhood  shall  be 
chosen,  one  by  the  debtor  and  the  other  by  the  creditor, 
his  agent  or  attorney,  and  these  two,  if  they  cannot 
agree,  shall  select  a  third  (but  if  either  party  fail  to 
choose  an  appraiser,  or  the  two  fail  to  select  a  third,  or) 
if  one  or  more  of  the  appraisers  fail  to  act,  the  officer 
shall  appoint  one.  The  appraisers  shall  forthwith  pro- 
ceed to  make  a  list,  by  separate  items,  of  the  personal 
property  selected  by  the  debtor  as  exempt,  which  they 
shall  decide  as  exempt,  stating  the  value  of  each  article, 
and  annexing  to  the  list  their  affidavit  to  the  following 


EXECUTIONS  UPON  JUDGMENTS.  101 

effect :  "We  solemnly  swear  that,  to  the  best  of  our  judg- 
ment, the  above  is  a  fair  cash  valuation  of  the  property 
therein  described,"  which  affidavit  shall  be  signed  by 
two  appraisers  at  least,  and  be  certified  by  the  officer  ad- 
ministering the  oaths.  The  list  shall  be  delivered  to  the 
officer  holding  the  execution  or  other  process,  and  be  by 
him  annexed  to  and  made  a  part  of  his  return,  and  the 
property  therein  specified  shall  be  exempt  from  levy  and 
sale,  and  the  other  personal  estate  of  the  debtor  shall 
remain  subject  thereto.  In  case  no  appraisement  be  re- 
quired, the  officer  shall  return  with  the  process  the  fist 
of  the  property  claimed  as  exempt  by  the  debtor.  The 
appraisers  shall  each  be  entitled  to  one  dollar,  to  be  paid 
by  the  creditor,  if  all  the  property  claimed  by  the  debtor 
shall  be  exempt;  otherwise,  to  be  paid  by  the  debtor. 
[572.] 


102  JUSTICE  OF  THE  PEACE  GUIDE. 


CHAPTER  XII. 
ARREST  IN  CIVIL  ACTIONS. 

§  200.  Warrant  of  arrest  (civil). 

§  201.  Affidavit  for  warrant. 

§  202.  Bond  for  arrest  in  civil  action. 

§  203.  Arrest  of  defendant. 

§  204.  Plaintiff  notified  of  arrest. 

§  205.  Detention  of  defendant. 

§  206.  Discharge  of  defendant. 

§  207.  Guardian  for  infant  plaintiff. 

§  208.  Guardian  for  infant  defendant. 

One  of  the  greatest  injustices  of  the  old  legal  system  was 
the  arrest  and  confinement  in  jail  of  debtors.  The  principle 
of  this  was  altogether  wrong,  and  with  the  advancement  of 
ideas  of  real  justice,  imprisonment  for  debt  was  abandoned 
and  the  debtors'  jail  became  a  thing  of  the  past.  However, 
there  are  a  number  of  cases  in  which  a  debtor  while  he  owes 
an  honest  debt  will  act  dishonestly  to  avoid  payment,  or 
when  he  has  committed  fraud  in  obtaining  the  goods  and 
creating  the  debt.  In  such  cases  the  law  provides  for  the 
arrest  of  such  persons,  but  is  careful  to  define  exactly  the 
offenses  subjecting  to  arrest  and  the  procedure  of  arrest  and 
bail  therefor. 

The  defendant  may  be  arrested  in  the  following  cases : 

1.  In  an  action  for  the  recovery  of  damages,  on  a 
cause  of  action  not  arising  out  of  contract,  where  the  de- 
fendant is  a  nonresident  of  the  state,  or  is  about  to  re- 
move therefrom,  or  where  the  action  is  for  an  injury  to 
person  or  character,  or  for  injuring,  or  for  wrongfully 
taking,  detaining  or  concerning  property. 

2.  In  an  action  for  a  fine  or  penalty,  or  on  a  promise 
to  marry,  or  for  money  received,  or  property  embezzled, 
or  fraudulently  misapplied,  or  converted  to  his  own  use, 
by  a  public  officer,  or  by  an  attorney,  or  by  an  officer  or 
agent  of  a  corporation  in  the  course  of  his  employment 
as  such,  or  by  any  factor,  agent,  broker,  or  other  person 
in  a  fiduciary  capacity,  or  for  any  misconduct  or  neglect 
in  office  or  in  a  professional  employment. 


AEREST  IN   CIVIL  ACTIONS.  103 

3.  In  an  action  to  recover  the  possession  of  personal 
property  unjustly  detained,  when  the  property,  or  any 
part  thereof  has  been  concealed,  removed  or  disposed  of, 
so  that  it  cannot  be  found  or  taken  by  the  sheriff,  and 
with  intent  that  it  should  not  be  so  found  or  taken,  or 
with  the  intent  to  deprive  the  plaintiff  of  the  benefit 
thereof. 

4.  When  the  defendant  has  been  guilty  of  a  fraud  in 
contracting  the  debt,  or  incurring  the  obligation  for 
which  the  action  is  brought,  or  in  concealing  or  dispos- 
ing of  the  property,  for  the  taking,  detention,  or  con- 
version of  which,  the  action  is  brought. 

5.  When  the  defendant  has  removed  or  disposed  of  his 
property,  or  is  about  to  do  so,  with  intent  to  defraud  his 
creditors. 

6.  When  the  action  is  to  prevent  threatened  injury  to, 
or  destruction  of  property,  in  which  the  party  bringing 

.  the  action  has  some  right,  interest,  or  title,  which  will 
be  impaired  or  destroyed  by  such  injury  or  destruction, 
and  the  danger  is  imminent  that  such  property  will  be 
destroyed,  or  its  value  impaired,  to  the  injury  of  the 
plaintiff. 

7.  On  the  final  judgment  or  order  of  any  court  in  this 
state,  while  the  same  remains  in  force,  when  the  defend- 
ant, having  no  property  subject  to  execution,  or  not 
sufficient  to  satisfy  such  judgment,  has  money  which  he 
ought  to  apply  in  payment  upon  such  judgment,  which 
he  refuses  to  apply,  with  intent  to  defraud  the  plain- 
tiff, or  when  he  refuses  to  comply  with  a  legal  order  of 
the  court,  with  intent  to  defraud  the  plaintiff;  or,  when 
any  one  or  more  of  the  causes  exist  for  which  an  arrest 
is  allowed,  in  the  first  class  of  cases  mentioned  in  this 
section.    [794.] 

The  above  law  applies  to  orders  issued  from  the  superior 
courts  of  the  state,  but  the  justice  of  the  peace,  within  the 
limits  of  his  jurisdiction,  has  the  same  authority. 

§  200.    WARRANT  OF  ARREST  (CIVIL). 

A  justice  of  the  peace  shall  issue  a  warrant  of  arrest 
in  all  such  cases  within  his  jurisdiction,  and  for  such 
causes,  and  upon  such  proof  as  is  provided  for  an  order 
for  a  warrant  in  the  act  regulating  civil  actions. 
[1790.] 


104  JUSTICE  OF  THE  PEACE  GUIDE. 

FORM. 
WARRANT  OP  ARREST  AND  BAIL. 

[Court  and  Cause.] 

To  the  Sheriff  or  Any  Constable  of  Said  County,  Greet- 
ing: 

In  the  name  of  the  state  of  Washington,  you  are 
hereby  commanded  to  take  the  body  of  George  Runn,  if 
he  be  found  in  your  county,  and  bring  him  forthwith  be- 
fore the  undersigned,  one  of  the  justices  of  the  peace 
in  and  for  said  county,  at  his  office,  room  602,  Prefon- 
taine  Building,  Seattle,  King  County,  to  answer  Samuel 
Chase  in  a  civil  action;  and  you  are  hereby  commanded 
to  give  notice  thereof  to  the  said  plaintiff,  or  his  agent 
or  attorney;  and  have  you  then  and  there  this  writ. 

Given  under  my  hand  this  3d  day  of  July,  1911. 

J  P. 

Before  the  order  for  warrant  of  arrest  shall  issue,  the 
party  must  make  his  affidavit  that  one  or  more  of  the  sec- 
tions above  specified  has  been  violated. 

§  201.    AFFIDAVIT  FOR  WARRANT. 

The  court  or  judge  making  the  order  of  arrest  shall 
first  be  satisfied  by  the  affidavit  of  the  party,  or  his 
agent,  or  attorney,  and  other  proof,  under  oath,  exclu- 
sive of  the  complaint,  that  the  case  is  one  in  which  an 
arrest  is  provided  for  in  section  116  and  that  one  or 
more  of  the  prescribed  cases  exist,  which  proof  shall  be 
in  writing,  and,  together  with  the  order,  be  filed  with 
the  clerk  before  he  shall  issue  any  warrants  for  the 
arrest.  [750.] 

The  plaintiff  having  made  his  affidavit  himself,  or  by  his 
agent  and  attorney,  setting  forth  the  fact  that  the  defendant 
is  doing  or  is  about  to  do  one  of  the  prohibited  things  above, 
he  must  file  his  indemnity  bond  before  the  order  will  issue. 
This  bond  provides  that  if  the  defendant  recover  judgment 
in  the  action,  he  shall  have  his  costs  and  damages  suffered 
by  the  arrest. 

§  202.    BOND  FOR  ARREST  IN  CIVIL  ACTION. 

Before  issuing  the  warrant  of  arrest  the  justice  shall 
require  a  bond  on  the  part  of  the  plaintiff,  with  one  or 


AKREST  IN   CIVIL  ACTIONS.  105 

more  sureties  to  the  effect  that  if  the  defendant  recover 
judgment,  the  plaintiff  will  pay  all  costs  that  may  be 
awarded  to  the  defendant,  and  all  damages  which  may 
be  sustained  by  reason  of  the  arrest,  not  exceeding  the 
sum  specified  in  the  bond,  which  shall  be  at  least  one 
hundred  dollars.  [1791.] 

FORM. 
BOND  FOR  THE  ABOVE  WARRANT. 

[Court  and  Cause.] 

Know  All  Men  by  These  Presents,  that  we,  Samuel 
Chase,  as  principal,  and  E  F  and  G  H,  as  sureties,  are 
held  and  firmly  bound  unto  George  Runn,  his  executors, 
administrators  and  assigns,  in  the  penal  sum  of  one  hun- 
dred dollars,  lawful  money  of  the  United  States,  for 
,  which  payment,  well  and  truly  to  be  made,  we  hereby 
bind  ourselves  and  each  of  our  heirs,  executors  and  ad- 
ministrators, jointly  and  severally,  firmly  by  these 
presents. 

Sealed  with  our  seals  and  dated  this  8th  day  of  Au- 
gust, 1912. 

The  condition  of  this  obligation  is  such  that,  whereas, 
an  application  has  been  made  by  the  above-bounden 

Samuel  Chase,  to ,  Esq.,  one  of  the  justices  of 

the  peace  in  and  for  Seattle  Precinct,  King  County,  for 
a  warrant  to  arrest  George  Runn,  defendant,  founded 
upon  an  affidavit  of  the  said  plaintiff,  setting  forth  that 
the  said  George  Runn  [state  grounds  for  arrest] ;  now, 
therefore,  if  the  said  Samuel  Chase  shall  pay  all  costs 
that  may  be  awarded  to  the  defendant,  and  all  damages 
which  he  may  sustain  by  reason  of  the  arrest,  not  ex- 
ceeding the  sum  of  one  hundred  dollars,  then  this  obliga- 
tion to  be  void;  otherwise  to  remain  in  full  force  and 
effect. 

§  203.    ARREST  OF  DEFENDANT. 

The  affidavit  and  the  bond  having  been  filed  and  the  war- 
rant having  issued,  the  defendant  is  thereupon  arrested  and 
brought  before  the  justice. 

The  warrant  shall  be  served  by  arresting  the  defend- 
ant and  taking  him  before  the  justice  of  the  peace  who 
issued  the  same;  but  if  such  justice,  at  the  return 


106  JUSTICE  OF  THE  PEACE  GUIDE. 

thereof,  be  absent  or  unable  to  try  the  action,  the  officer 
shall  immediately  take  the  defendant  to  the  nearest  jus- 
tice of  the  same  county,  who  shall  take  cognizance  of 
the  action,  and  proceed  thereon  as  if  the  warrant  had 
been  issued  by  himself.  [1792.] 

The  plaintiff  is  then  notified  of  the  arrest. 

§  204.    PLAINTIFF  NOTIFIED  OF  ARREST. 

The  officer  making  the  arrest  shall  immediately  give 
notice  to  the  plaintiff,  bis  agent  or  attorney,  and  indorse 
on  the  warrant  the  time  of  the  arrest,  and  the  time  of 
serving  notice  on  the  plaintiff.  [1793.] 

The  defendant  after  his  arrest  may  not  be  detained  in  cus- 
tody longer  than  twenty-four  hours,  unless  the  action  is  com- 
menced in  that  time  or  is  delayed  by  the  defendant  himself. 
If,  however,  the  defendant  wishes  to  have  the  case  continued 
in  order  that  he  may  be  in  a  better  position  to  defend  him- 
self, he  may  obtain  such  continuance  by  remaining  in  cus- 
tody or  giving  a  bond  for  his  appearance  at  the  time  set  for 
trial. 

§  205.    DETENTION  OF  DEFENDANT. 

When  a  defendant  is  brought  before  a  justice  on  a 
warrant  he  shall  be  detained  in  the  custody  of  the  officer 
until  he  shall  be  discharged  according  to  law;  but  in  no 
case  shall  the  defendant  be  detained  longer  than  twenty- 
four  hours  from  the  time  he  shall  be  brought  before  the 
justice,  unless  within  that  time  the  trial  of  the  action  be 
commenced  or  unless  it  has  been  delayed  at  the  instance 
of  the  defendant.  [1794.] 

§  206.    DISCHARGE  OF  DEFENDANT. 

If  the  defendant,  on  his  appearance,  demand  a  con- 
tinuance  the  same  may  be  granted  on  condition  that  he 
remain  in  custody  or  execute  and  file  with  the  justice 
a  bond,  with  one  or  more  sufficient  sureties,  to  be  ap- 
proved by  the  justice,  to  the  effect  that  he  will  render 
himself  amenable  to  the  process  of  the  court ;  or  that  the 
sureties  will  pay  to  the  plaintiff  the  amount  of  any  judg- 
ment which  he  may  recover  in  the  action.  On  filing  such 
bond,  the  justice  shall  order  the  defendant  to  be  dis- 
charged from  custody.  [1795.] 


ARREST  IN  CIVIL  ACTIONS.  107 

§  207.    GUARDIAN  FOR  INFANT  PLAINTIFF. 

An  infant  plaintiff  must  commence  the  action  by  guardian 
ad  litem. 

No  action  shall  be  commenced  by  an  infant  plaintiff 
except  by  his  guardian,  or  until  a  next  friend  for  such 
infant  shall  have  been  appointed.  Whenever  requested, 
the  justice  shall  appoint  some  suitable  person,  who  shall 
consent  thereto  in  writing,  to  be  named  by  such  plain- 
tiff, to  act  as  his  next  friend  in  such  action,  who  shall  be 
responsible  for  the  costs  therein.  [1771.] 

§  208.    GUARDIAN  FOR  INFANT  DEFENDANT. 

In  like  manner  an  infant  defendant  is  defended  by  guard- 
ian. 

After  service  and  return  of  process  against  an  infant 
defendant,  the  action  shall  not  be  further  prosecuted 
'  until  a  guardian  for  such  infant  shall  have  been  ap- 
pointed. Upon  the  request  of  such  defendant,  the  jus- 
tice shall  appoint  some  person  who  shall  consent  thereto 
in  writing,  to  be  guardian  of  the  defendant  in  defense  of 
the  action;  and  if  the  defendant  shall  not  appear  on  the 
return  day  of  the  process,  or  if  he  neglect  or  refuse  to 
nominate  such  guardian,  the  justice  may,  at  the  request 
of  the  plaintiff,  appoint  any  discreet  person  as  such 
guardian.  The  consent  of  the  guardian  or  next  friend 
shall  be  filed  with  the  justice ;  and  such  guardian  for  the 
defendant  shall  not  be  liable  for  any  costs  in  the  action. 
[1772.] 


108  JUSTICE  OF  THE  PEACE  GUIDE. 


CHAPTER  XIII. 
ATTACHMENTS. 

§  209.  Attachment,  time  of. 

§  210.  Order  in  which  writs  are  executed. 

§  211.  Sale  of  attached  property — Perishable. 

§  212.  Discharge  of  improper  writ. 

§  213.  Eeturn  of  writ. 

§  214.  Moneys  received  on  attachment. 

§  215.  Garnishment  of  sheriff  or  constable. 

§  216.  Attaching  funds  in  hands  of  the  court. 

§  217.  Officer  to  inventory  goods. 

§  218.  Eeturn  of  unsatisfied  writ. 

§  219.  Deficiency  and  surplus  execution. 

§  220.  Execution  of  judgment  on  attached  property. 

§  221.  Eelease  on  judgment  for  defendant. 

§  222.  Examination  of  defendant  as  to  his  property. 

§  223.  Pursuing  property  to  another  county. 

5  224.  Motion  for  discharging  attachment. 

§  225.  Hearing  on  motion  to  discharge  attachment. 

§  226.  Counter-bond  to  discharge  attachment. 

§  227.  Judgment  on  counter-bond. 

§  228.  Suit  on  attachment  bond. 

§  229.  Construction  of  amendment  statutes. 

§  230.  Affidavit  for  writ  of  attachment. 

§  231.  Bond  on  attachment. 

§  232.  Additional  security. 

§  233.  The  writ  of  attachment. 

§  234.  Execution  of  writ. 

Among  what  are  called  the  provisional  remedies,  not  the 
least  is  that  of  the  attachment,  a  process  whereby  the  prop- 
erty of  a  defendant  may  be  held  as  security  for  the  satisfac- 
tion of  judgment,  should  the  plaintiff  obtain  same  upon  the 
trial  of  the  cause. 

The  writ  of  attachment  issues  from  the  justice  court  upon 
the  affidavit  of  the  plaintiff,  or  his  agent,  setting  forth  the 
amount  of  the  indebtedness  and  one  or  more  of  the  statutory 
grounds  of  attachment  which  will  be  treated  of  hereafter. 
The  greatest  care  is  necessary  in  compiling  the  affidavit,  as 
this  is  the  basis  of  the  remedy,  and  if  vicious  itself,  vitiates 
all  the  proceedings  thereupon.  Our  supreme  court  has  held 


ATTACHMENTS.  109 

(in  Tac.  Grocery  Co.  v.  Draham,  8  Wash.  263)  that  a  paper 
in  the  form  of  an  affidavit,  signed  by  plaintiff's  attorney,  but 
not  appearing  on  its  face  to  have  been  sworn  to,  was  bad, 
and  the  judgment  rendered  thereon  was  null,  the  court  not 
having  jurisdiction  thereof. 

The  plaintiff  at  the  time  of  commencing  an  action,  or 
at  any  time  afterward  before  judgment,  may  have  the 
property  of  the  defendant,  or  that  of  any  one  or  more 
of  several  defendants  attached  in  the  manner  herein- 
after prescribed,  as  security  for  the  satisfaction  of  such 
judgment  as  he  may  recover.  [647.] 

§  209.    ATTACHMENT,  TIME  OP. 

Before  a  debt  becomes  due,  property  may  be  attached 
when  there  is  a  danger  that  it  will  be  removed,  or  that  the 
creditor  will  be  defrauded. 

An  action  may  be  commenced  and  the  property  of  a 
debtor  may  be  attached  previous  to  the  time  when  the 
debt  becomes  due,  when  nothing  but  time  is  wanting  to 
fix  an  absolute  indebtedness,  and  when  the  affidavit,  in 
addition  to  that  fact,  states: — 

1.  That  the  defendant  is  about  to  dispose  of  his  prop- 
erty with  intent  to  defraud  his  creditors ;  or 

2.  That  the  defendant  is  about  to  remove  from  the 
state,  and  refuses  to  make  any  arrangements  for  secur- 
ing the  payment  of  the  debt  when  it  falls  due,  and  which 
contemplated  removal  was  not  known  to  the  plaintiff 
at  the  time  the  debt  was  contracted ;  or 

3.  That  the  defendant  has  disposed  of  his  property,  in 
whole  or  in  part,  with  intent  to  defraud  his  creditors ;  or 

4.  That  the  debt  was  incurred  for  property  obtained 
under  false  pretenses.    [649.] 

§  210.    ORDER  IN  WHICH  WRITS  ARE  EXECUTED. 

Where  there  are  several  attachments  against  the  same 
defendant  they  shall  be  executed  in  the  order  in  which 
they  were  received  by  the  sheriff.  [657.] 

When  the  attaching  officer  takes  into  custody  any  perish- 
able property,  he  may  sell  the  same  in  the  manner  in  which 
sales  are  made  on  execution.  The  provision  also  applies  to 


110  JUSTICE  OP  THE  PEACE  GUIDE. 

those  cases  in  which  the  court  is  satisfied  that  the  interests 
of  both  parties  would  be  served  by  such  sale. 

§  211.  SALE  OF  ATTACHED  PROPERTY  —  PERISH- 
ABLE. 

If  any  of  the  property  attached  be  perishable,  or  in 
danger  of  serious  and  immediate  waste  or  decay,  the 
sheriff  shall  sell  the  same  in  the  manner  in  which  such 
property  is  sold  on  execution.  Whenever  it  shall  be 
made  to  appear  satisfactorily  to  the  court  that  the  in- 
terest of  the  parties  to  the  action  will  be  subserved  by  a 
sale  of  any  attached  property,  the  court  may  order  such 
property  to  be  sold  in  the  same  manner  as  like  property 
is  sold  under  execution.  Such  order  shall  be  made  only 
upon  notice  to  the  adverse  party  or  his  attorney,  in  case 
such  party  shall  have  been  personally  served  with  a  sum- 
mons or  complaint  and  notice  in  the  action.  [662.] 

§  212.    DISCHARGE  OF  IMPROPER  WRIT. 

If  upon  application  it  satisfactorily  appears  that  the 
writ  of  attachment  was  improperly  or  irregularly  issued, 
it  must  be  discharged.  [657.] 

§  213.    RETURN  OF  WRIT. 

The  sheriff  must  return  the  writ  of  attachment  with 
the  summons,  if  issued  at  the  same  time,  otherwise, 
within  twenty  days  after  its  receipt,  with  a  certificate 
of  his  proceedings  indorsed  thereon  or  attached  thereto, 
and  whenever  an  order  has  been  made  discharging  or 
releasing  an  attachment  upon  real  property,  a  certified 
copy  of  such  order  may  be  filed  in  the  offices  of  the 
county  auditors  in  which  the  notices  of  attachment  have 
been  filed,  and  indexed  in  like  manner.  [676.] 

Any  moneys  recovered  by  the  officer  under  execution  are 
held  by  him  pending  the  outcome  of  the  action. 

§  214.    MONEYS  RECEIVED  ON  ATTACHMENT. 

All  moneys  received  by  the  sheriff  under  the  provi- 
sions of  this  chapter  and  all  other  attached  property 
shall  be  retained  by  him  to  answer  any  judgment  that 
may  be  recovered  in  the  action,  unless  sooner  subjected 
to  execution  upon  another  judgment  recovered  previous 
to  the  issuing  of  the  attachment.  [663.] 


ATTACHMENTS.  Ill 

§  215.  GARNISHMENT  OF  SHERIFF  OR  CONSTABLE. 

A  sheriff  or  constable  may  be  garnished  for  money  of 
the  defendant  in  his  hands.  So  may  a  judgment  debtor 
of  the  defendant  when  the  judgment  has  not  been  pre- 
viously assigned  on  the  record,  or  by  writing  filed  in  the 
office  of  the  justice  or  clerk,  and  by  him  minuted  as  an 
assignment  on  the  margin  of  the  execution  docket,  and 
also  an  executor  or  administrator  may  be  garnished  for 
money  due  from  the  decedent  to  the  defendant.  [664.] 

§  216.  ATTACHING  FUNDS  IN  HANDS  OF  THE 
COURT. 

When  the  property  to  be  attached  is  a  fund  in  court, 
the  execution  of  a  writ  of  attachment  shall  be  by  leav- 
ing with  the  justice  a  copy  thereof,  with  notice  in  writ- 
ing specifying  the  fund.  [665.] 

§  217.    OFFICER  TO  INVENTORY  GOODS. 

The  sheriff  shall  make  a  full  inventory  of  the  property 
attached,  and  return  the  same  with  the  writ.  [666.] 

§  218.    RETURN  OF  UNSATISFIED  WRIT. 

If  the  execution  be  returned  unsatisfied,  in  whole  or  in 
part,  the  plaintiff  may  proceed  as  in  other  cases  upon  the 
return  of  an  execution.  [669.] 

The  officer  making  the  attachment  may  follow  other  prop- 
erty to  secure  the  balance  due  after  the  sale  of  attached 
goods,  when  a  balance  shall  still  remain  due  and  unpaid. 
On  the  other  hand,  when  there  is  a  balance  of  the  attached 
property  left  in  the  custody  of  the  officer  after  the  payment 
of  the  judgment  and  costs,  such  balance  shall  be  restored  to 
the  defendant. 

§  219.    DEFICIENCY  AND  SURPLUS  EXECUTION. 

If,  after  selling  all  the  property  attached  by  him  re- 
maining in  his  hands,  and  applying  the  proceeds,  de- 
ducting his  fees,  to  the  payment  of  the  judgment,  any 
balance  shall  remain  due,  the  sheriff  shall  proceed  to 
collect  such  balance  as  upon  an  execution  in  other  cases. 
Whenever  the  judgment  shall  have  been  paid,  the  officer 
upon  reasonable  demand,  shall  deliver  over  to  the  de- 


112  JUSTICE  OF  THE  PEACE  GUIDE. 

fendant  the  attached  property  remaining  in  his  hands 
and  any  proceeds  of  the  property  attached  unapplied  on 
the  judgment.  [668.] 

Assuming  that  the  plaintiff  prevails  in  his  suit,  the  officer 
attaching  the  defendant's  property  shall  satisfy  the  judg- 
ment therefrom.  If  he  has  sold  any  of  the  property  as  per- 
ishable, he  will  apply  the  proceeds  of  such  sale  on  the  exe- 
cution which  will  issue  on  the  judgment  recovered.  He  may 
sell  the  balance  of  any  property  remaining  in  his  hands  on 
the  attachment  if  he  has  not  sufficient  in  the  first  place  to 
execute  the  judgment. 

§  220.    EXECUTION   OF   JUDGMENT   ON   ATTACHED 
PROPERTY. 

If  judgment  be  recovered  by  the  plaintiff,  the  sheriff 
shall  satisfy  the  same  out  of  the  property  attached  by 
him  which  has  not  been  delivered  to  the  defendant  or 
claimant  as  in  this  chapter  provided,  or  subjected  to 
execution  on  another  judgment  recovered  previous  to 
the  issuing  of  the  attachment,  if  it  be  sufficient  for  that 
purpose, — 

1.  By  applying  on  the  execution  issued  on  said  judg- 
ment the  proceeds  of  all  sales  of  perishable  or  other 
property  sold  by  him,  or  so  much  as  shall  be  necessary 
to  satisfy  the  judgment; 

2.  If  any  balance  remain  due,  he  shall  sell  under  the 
execution  so  much  of  the  property  as  may  be  necessary 
to  satisfy  the  balance,  if  enough  for  that  purpose  remain 
in  his  hands. 

Notice  of  the  sale  shall  be  given  and  the  sale  con- 
ducted as  in  other  cases  of  sales  on  execution.  [667.] 

On  the  other  hand,  if  the  defendant  recover  judgment 
against  the  plaintiff,  all  moneys  and  property  attached  shall 
be  delivered  to  him  or  his  agents ;  the  attachment  being  dis- 
charged and  the  property  released. 

§  221.    RELEASE  ON  JUDGMENT  FOR  DEFENDANT. 

If  the  defendant  recover  judgment  against  the  plain- 
tiff, all  the  proceeds  of  sales  and  money  collected  by  the 
sheriff,  and  all  the  property  attached  remaining  in  the 
sheriff's  hands,  shall  be  delivered  to  the  defendant  or 


ATTACHMENTS.  113 

his  agent.    The  order  of  attachment  shall  be  discharged, 
and  the  property  released  therefrom.    [670.] 

The  law  provides  for  the  examination  of  a  defendant  when 
it  is  thought  that  he  has  property  which  is  not  exempt 
not  known  to  the  plaintiff  or  attaching  officer. 

§  222.    EXAMINATION  OF  DEFENDANT  AS  TO  HIS 
PROPERTY. 

Whenever  it  appears  by  the  affidavit  of  the  plaintiff, 
or  by  the  return  of  the  attachment,  that  no  property  is 
known  to  the  plaintiff  or  officer  on  which  the  attachment 
can  be  executed,  or  not  enough  to  satisfy  the  plaintiff's 
claim,  and  it  being  shown  to  the  court  by  affidavit  that 
the  defendant  has  property  within  the  state  not  exempt, 
the  defendant  may  be  required  by  such  court  to  attend 
before  the  court  and  give  information  on  oath  respecting 
,the  same.  [660.] 

Twenty-four  hours  after  removal,  the  officer  can  pursue 
property  into  an  adjoining  county. 

§  223.    PURSUING  PROPERTY  TO  ANOTHER  COUNTY. 

If,  after  an  attachment  has  been  placed  in  the  hands 
of  the  sheriff,  any  property  of  the  defendant  is  moved 
from  the  county,  the  sheriff  may  pursue  and  attach  the 
same  in  an  adjoining  county,  within  twenty-four  hours 
after  removal.  [658.] 

The  defendant  has  the  right  to  move  the  court  for  the  dis- 
solution of  the  order  of  attachment  on  the  ground  that  the 
same  was  improperly  or  irregularly  issued.  This  is  accom- 
plished with  due  notice  to  the  adverse  party  in  order  that  he 
may  appear  in  court  and  oppose  the  motion. 

§  224.    MOTION  FOR  DISCHARGING  ATTACHMENT. 

The  defendant  may  at  any  time  after  he  has  appeared 
in  the  action,  either  before  or  after  the  release  of  the 
attached  property,  or  before  any  attachment  shall  have 
been  actually  levied,  apply  on  motion,  upon  reasonable 
notice  to  the  plaintiff,  to  the  court  in  which  the  action 
is  brought,  that  the  writ  of  attachment  be  discharged 
on  the  ground  that  the  same  was  improperly  or  irregu- 
larly issued.  [673.] 
8 


114  JUSTICE  OP  THE  PEACE  GUIDE. 

§  225.    HEARING   ON   MOTION   TO   DISCHARGE   AT- 
TACHMENT. 

If  the  motion  be  made  upon  affidavits  upon  the  part  of 
the  defendant,  but  not  otherwise,  the  plaintiff  may  op- 
pose the  same  by  affidavits  or  other  evidence  in  addition 
to  those  on  which  the  attachment  was  issued.  [674.] 

At  any  time  before  judgment,  the  defendant  may  bail  out 
his  goods,  as  it  were,  from  the  custody  of  the  attaching  offi- 
cer, by  filing  an  approved  counter-bond,  securing  the  observ- 
ance on  his  part  of  the  judgment  of  the  court. 

§  226.     COUNTER-BOND    TO    DISCHARGE    ATTACH- 
MENT. 

If  the  defendant,  at  any  time  before  judgment,  causes 
a  bond  to  be  executed  to  the  plaintiff  with  sufficient 
sureties,  to  be  approved  by  the  officer  having  the  attach- 
ment, or  after  the  return  thereof,  by  the  clerk  [justice], 
to  the  effect  that  he  will  perform  the  judgment  of  the 
court,  the  attachment  shall  be  discharged  and  restitution 
made  of  property  taken  or  proceeds  thereof.  The  exe- 
cution of  such  bond  shall  be  deemed  an  appearance  of 
such  defendant  to  the  action.  [671.] 

FORM. 
UNDERTAKING   TO   DISCHARGE   ATTACHMENT. 

Whereas,  a  writ  of  attachment  has  been  issued  by  J  P, 

one  of  the  justices  of  the  peace  in  and  for  

county,  against  the  personal  property  of  C  D,  defend- 
ant, in  an  action  in  which  A  B  is  plaintiff:  Now,  there- 
fore, we,  C  D,  defendant,  E  F  and  G  H,  acknowledge 
ourselves  bound  unto  J  K,  constable,  in  the  sum  of 
dollars  [double  the  value  of  the  property],  en- 
gaging to  deliver  the  property  attached,  to  wit  [here  set 
forth  a  list  of  articles  attached]  or  pay  the  value  thereof 
to  the  sheriff  or  constable,  to  whom  the  execution  upon 
a  judgment  obtained  by  plaintiff  in  the  aforesaid  action 
may  be  issued. 

Dated  this day  of ,19 

C  D,  E  F,  G  H. 

This  judgment  goes  against  the  defendant  and  his  sureties. 


ATTACHMENTS.  115 

§  227.    JUDGMENT  ON  COUNTER-BOND. 

Such  bond  shall  be  part  of  the  record,  and  if  judgment 
go  against  the  defendant,  the  same  shall  be  entered 
against  him  and  his  sureties.  [672.] 

§  228.    SUIT  ON  ATTACHMENT  BOND. 

In  an  action  on  such  bond  [235],  the  plaintiff  therein 
may  recover,  if  he  shows  that  the  attachment  was  wrong- 
fully sued  out,  and  that  there  was  no  reasonable  cause 
to  believe  the  ground  upon  which  the  same  was  issued 
to  be  true,  the  actual  damages  sustained  and  reasonable 
attorney's  fees  to  be  fixed  by  the  court;  and  if  it  be 
shown  that  such  attachment  was  sued  out  maliciously, 
he  may  recover  exemplary  damages,  nor  need  he  wait 
until  the  principal  suit  is  determined  before  suing  on  the 
bond.  [654.] 

Finally,  the  chapter  concerning  attachments  is  to  be  liber- 
ally construed.  Amendments  are  to  be  liberally  allowed, 
and  no  attachment  proceeding  shall  be  quashed  when  any 
defect  or  omission  may  be  remedied  by  amendment  to  show 
a  legal  cause  for  the  issuing  of  the  attachment. 

§  229.  CONSTRUCTION  OF  AMENDMENT  STATUTES. 
This  chapter  shall  be  liberally  construed,  and  the 
plaintiff  at  any  time  when  objection  is  made  thereto, 
shall  be  permitted  to  amend  any  defect  in  the  complaint, 
affidavit,  bond,  writ  or  other  proceeding ;  and  no  attach- 
ment shall  be  quashed  or  dismissed,  or  the  property  at- 
tached released,  if  the  defect  in  any  of  the  proceedings 
has  been  or  can  be  amended  so  as  to  show  that  a  legal 
cause  for  the  attachment  existed  at  the  time  it  was  is- 
sued, and  the  court  shall  give  the  plaintiff  a  reasonable 
time  to  perfect  such  defective  proceedings.  The  causes 
for  attachment  shall  not  be  stated  in  the  alternative. 
[677.] 

§  230.    AFFIDAVIT  FOR  WRIT  OF  ATTACHMENT. 

The  plaintiff  or  his  agent  must  make  an  affidavit  before 
the  writ  of  attachment  will  issue,  specifying  the  amount  of 
the  indebtedness  and  affirming  that  the  writ  is  not  sued  out 
for  purposes  of  fraud  or  delay. 

The  writ  of  attachment  shall  be  issued  by  the  justice 
of  the  peace  before  whom  the  action  is  pending;  but  be- 


116  JUSTICE  OF  THE  PEACE  GUIDE. 

fore  any  such  writ  of  attachment  shall  issue,  the  plain- 
tiff, or  someone  in  his  behalf,  shall  make  and  file  with 
such  justice  an  affidavit  showing  that  the  defendant  is 
Indebted  to  the  plaintiff  (specifying  the  amount  of  such 
indebtedness  over  and  above  all  just  credits  and  offsets) 
and  that  the  attachment  is  not  sought  and  the  action  is 
not  prosecuted  to  hinder,  delay,  or  defraud  any  creditor 
of  the  defendant,  and  either : 

1.  That  the  defendant  is  a  foreign  corporation ;  or 

2.  That  the  defendant  is  not  a  resident  of  this  state; 
or 

3.  That  the  defendant  conceals  himself  so  that  the  or- 
dinary process  of  the  law  cannot  be  served  upon  him ;  or 

4.  That  the  defendant  has  absconded  or  absented  him- 
self from  his  usual  place  of  abode  in  this  state,  so  that 
the  ordinary  process  of  law  cannot  be  served  upon  hin^ ; 
or 

5.  That  the  defendant  has  removed  or  is  about  to  re- 
move any  of  his  property  from  this  state,  with  intent  to 
delay  or  defraud  his  creditors;  or 

6.  That  the  defendant  has  assigned,  secreted,  or  dis- 
posed of,  or  is  about  to  assign,  secrete,  or  dispose  of,  any 
of  his  property,  with  intent  to  delay  or  defraud  his  cred- 
itors; or 

7.  That  the  defendant  is  about  to  convert  his  prop- 
erty, or  a  part  thereof,  into  money,  for  the  purpose  of 
placing  it  beyond  the  reach  of  his  creditors ;  or 

8.  That  the  defendant  has  been  guilty  of  a  fraud  in 
contracting  the  debt,  or  incurring  the  obligation  for 
which  the  action  is  brought ;  or 

9.  That  the  damages  for  which  the  action  is  brought 
are  for  injuries  arising  from  the  commission  of  some 
felony,  or  for  the  seduction  of  some  female.    [648.] 

The  next  step  is  to  present  a  bond,  with  two  or  more 
sureties,  double  the  amount  of  the  plaintiff's  demand,  and 
securing  the  prosecution  of  the  suit  and  the  payment  of  costs. 

§  231.    BOND  ON  ATTACHMENT. 

Before  the  writ  of  attachment  shall  issue,  the  plain- 
tiff or  someone  in  his  behalf,  shall  execute  and  file  with 
the  justice  a  bond  or  undertaking,  with  two  or  more 
sureties,  in  a  sum  in  no  case  less  than  fifty  dollars,  and 
double  the  amount  for  which  plaintiff  demands  judg- 


ATTACHMENTS.  Ill 

ment,  conditioned  that  the  plaintiff  will  prosecute  his 
action  without  delay,  and  will  pay  all  costs  that  may  be 
adjudged  to  the  defendant,  and  all  damages  which  he 
may  sustain  by  reason  of  the  attachment,  not  exceeding 
the  amount  specified  in  such  bond  or  undertaking,  as 
the  penalty  thereof  should  the  same  be  wrongfully,  op- 
pressively or  maliciously  sued  out.  With  said  bond  or 
undertaking,  there  shall  also  be  filed  the  affidavit  of  the 
sureties,  from  which  it  must  appear  that  such  sureties 
are  qualified,  and  that  they  are,  taken  together,  worth 
the  sum  specified  in  the  bond  or  undertaking,  over  and 
above  all  debts  and  liabilities  and  property  exempt  from 
execution.  No  person  not  qualified  to  become  bail  upon 
arrest  shall  be  qualified  to  become  surety  upon  a  bond 
or  undertaking  for  an  attachment.  [652.] 

FORM. 
UNDERTAKING  IN  ATTACHMENT. 

Whereas,  an  application  has  been  made  by  A  B,  plain- 
tiff, to  J  P,  one  of  the  justices  of  the  peace  in  and  for 

county,  for  a  writ  of  attachment  against  the 

personal  property  of  C  D,  defendant ;  now,  therefore,  we, 
A  B,  plaintiff,  and  E  F  acknowledge  ourselves  bound  to 

C  D  in  the  sum  of dollars,  that  if  the  defendant 

recover  judgment  in  this  action,  the  plaintiff  will  pay 
all  costs  that  may  be  awarded  to  the  defendant,  and  all 
damages  which  he  may  sustain  by  reason  of  the  said  at- 
tachment and  not  exceeding  the  sum  of dollars. 

Dated  the day  of ,19 

A  B,  E  F. 

The  defendant,  at  any  time  before  judgment,  may  move 
the  court  for  additional  security. 

§  232.    ADDITIONAL  SECURITY. 

The  defendant  may,  at  any  time  before  judgment, 
move  the  court  for  additional  security  on  the  part  of  the 
plaintiff,  and  if  on  such  motion,  the  court  is  satisfied 
that  the  surety  in  the  plaintiff's  bond  has  removed  from 
this  state,  or  is  not  sufficient,  the  attachment  may  be 
vacated,  and  restitution  directed  of  any  property  taken 
under  it,  unless  in  a  reasonable  time,  to  be  fixed  by  the 
court,  further  security  is  given  by  the  plaintiff,  in  form 
as  provided  in  the  preceding  section.  [653.] 


118  JUSTICE  OP  THE  PEACE  GUIDE. 

§  233.    THE  WRIT  OF  ATTACHMENT. 

The  writ  of  attachment  shall  be  directed  to  the  sheriff 
or  any  constable  of  the  county  in  which  the  action  is 
pending,  and  shall  require  him  to  attach  and  safely  keep 
the  property  of  such  defendant  within  his  county,  to  the 
requisite  amount,  which  shall  be  stated  in  conformity 
with  the  affidavit.  The  officer  shall  in  all  cases  attach 
the  amount  of  property  directed,  if  sufficient  not  exempt 
from  execution  be  found  in  his  county,  giving  that  in 
which  the  defendant  has  a  legal  and  unquestionable  title 
a  preference  over  that  in  which  the  title  is  doubtful  or 
only  equitable,  and  he  shall,  as  nearly  as  the  circum- 
stances of  the  case  will  permit,  levy  upon  property  fifty 
per  cent  greater  in  valuation  than  the  amount  which 
plaintiff  in  his  affidavit  claims  to  be  due.  When  prop- 
erty is  seized  on  attachment,  the  court  may  allow  the 
officer  having  charge  thereof  such  compensation  for  his 
trouble  and  expenses  in  keeping  the  same  as  shall  be 
reasonable  and  just.  [655.] 

STATUTORY  FORMS  IN  CIVIL  ACTIONS. 

The  following  or  equivalent  forms  may  be  used  by 
justices  of  the  peace  in  civil  actions  and  proceedings 
under  this  chapter,  to  wit: 

WRIT  OF  ATTACHMENT. 

State  of  Washington, 
County  of ,  ss. 

To  the  Sheriff  or  Any  Constable  of  Said  County: 

In  the  name  of  the  state  of  Washington,  you  are  com- 
manded to  attach,  and  safely  keep,  the  goods,  chat- 
tels, moneys,  effects  and  credits  of  C  D  (excepting  such 
as  the  law  exempts),  or  so  much  (thereof)  as  shall 

satisfy  the  sum  of  dollars,  with  interest  and 

cost  of  suit,  in  whosesoever  hands  or  possession  the  same 
may  be  found  in  your  county,  and  to  provide  that  the 
goods  and  chattels  so  attached  may  be  subject  to  fur- 
ther proceeding  thereon,  as  the  law  requires;  and  of 
this  writ  make  legal  service  and  due  return. 
Given  under  my  hand  this day  of ,19 

JP, 

Justice  of  the  Peace. 


ATTACHMENTS.  119 

The  execution  of  the  writ  is  made  on  personal  property 
capable  of  manual,  or  hand,  delivery,  by  taking  into  custody, 
and  second,  on  stocks  and  shares  which  the  defendant  may 
have  in  any  corporation,  by  notice  to  corporation. 

§  234.    EXECUTION  OF  WRIT. 

The  sheriff  to  whom  the  writ  is  directed  and  delivered 
must  execute  the  same  without  delay,  as  follows: 

1.  Personal  property  capable  of  manual  delivery 
shall  be  attached  by  taking  into  custody; 

2.  Stock  or  shares,  or  interest  in  stock  or  shares, 
of  any  corporation,  association,  or  company,  shall  be 
attached  by  leaving  with  the  president  or  other  head 
of  the  same,  or  the  secretary,  cashier  or  managing  agent 
thereof,  a  copy  of  the  writ,  and  a  notice  stating  that 
the  stock  or  interest  of  the  defendant  is  attached  in 

.  pursuance  of  such  writ.    [659.] 


120  JUSTICE  OF  THE  PEACE  GUIDE. 


CHAPTER  XIV. 
EEPLEVIN. 

§  235.  Form  of  affidavit. 

§  236.  Justice's  order  for  delivery. 

§  237.  Execution. 

§  238.  Defendant's  counter-bond. 

§  239.  Sureties — Their  justification. 

§  240.  The  defendant's  sureties. 

§  241.  Claim  of  third  party  for  property. 

§  242.  Execution — Eight  to  break  into  buildings. 

§  243.  Execution — Officer  shall  keep  and  deliver  chattel. 

§  244.  Execution. — The  officer's  return. 

When  a  party  claims  the  possession  of  personal  property 
in  the  control  of  another  party,  he  recovers  the  same  by  com- 
mencing an  action  for  the  recovery  of  the  goods  or  their 
value,  and  at  the  same  time  may  require  the  justice  of  the 
peace  to  issue  a  writ  of  replevin;  an  order  directing  the 
sheriff  or  constable  to  proceed  to  the  place  where  the  goods 
in  dispute  are  lodged  and  take  them  into  his  possession. 
This  is  the  action  of  replevin. 

The  plaintiff  commences  his  suit  in  the  way  in  which  we 
have  outlined  for  suits  generally,  and  at  some  time  before 
the  defendant  answers  the  complaint  the  plaintiff  makes  a 
prescribed  affidavit  concerning  the  property,  and  on  that  affi- 
davit secures  the  order  of  replevin,  securing  the  sheriff  or 
constable  by  an  indemnity  bond,  in  a  sum  equal  to  twice  the 
value  of  the  disputed  property. 

The  plaintiff  in  an  action  to  recover  the  possession 
of  personal  property  may,  at  the  time  of  issuing  such 
summons,  or  at  any  time  before  answer,  claim  the 
immediate  delivery  of  such  property  as  provided  in  this 
article.  [1796.] 

The  usual  practice  is  to  make  the  affidavit  for  replevin  and 
file  it  with  the  complaint.  The  affidavit  is  in  the  usual  form 
and  contains  the  following  general  averments: 


REPLEVIN.  121 

235.    FORM  OP  AFFIDAVIT. 

When  a  delivery  is  claimed,  an  affidavit  shall  be  made 
by  the  plaintiff,  or  by  someone  in  his  behalf,  showing: 

1.  That  the  plaintiff  is  the  owner  of  the  property 
claimed  (particularly  describing  it),  or  is  lawfully  en- 
titled  to  the  possession  thereof  by  virtue  of  a  special 
property  therein,  the  facts  in  respect  to  which  shall 
be  set  forth; 

2.  That  the  property  is  wrongfully  detained  by  the 
defendant ; 

3.  The  alleged  cause  of  the  detention  thereof,  ac- 
cording to  his  best  knowledge,  information,  and  be- 
lief; 

4.  That  the  same  has  not  been  taken  for  a  tax,  as- 
sessment, or  fine,  pursuant  to  a  statute,  or  seized  un- 
der an  execution  or  attachment  against  the  property 

r  of  the  plaintiff,  or  if  so  seized,  that  it  is  by  statute 
'  exempt  from  such  seizure ;  and 

6.  The  actual  value  of  the  property.    [1797.] 

FORMS. 

AFFIDAVIT  FOR  WRIT  OF  REPLEVIN. 
[Court  and  Cause.] 

State  of  Washington, 
County  of  King, — ss. 

Jonathan  Edwards,  being  first  duly  sworn,  on  oath 
deposes  and  says:  That  he  is  the  plaintiff  [or  agent 
for  plaintiff  and  makes  this  affidavit  on  behalf  of  plain- 
tiff] in  the  above-entitled  action;  that  he  is  the  owner 
of  all  and  singular  the  property  described  in  the  com- 
plaint filed  herein,  to  wit:  One  deal  table,  of  the  value 
of  forty  dollars;  three  chairs  (leather),  of  the  value  of 
ten  dollars  each;  that  said  property  and  every  part 
thereof  is  wrongfully  detained  from  plaintiff  by  Gordon 
Keep,  the  defendant  above  named,  in  the  county  of 
King;  that  the  alleged  cause  of  the  detention  thereof, 
according  to  the  knowledge,  information  and  belief 
of  the  affiant,  is  the  following:  The  defendant  claims 
to  be  entitled  to  the  possession  of  said  property  by 
virtue  of  [here  state  nature  of  defendant's  claim]; 
that  said  property  has  not  been  taken  for  a  tax,  assess- 
ment or  fine,  pursuant  to  a  statute,  or  seized  under 


122  JUSTICE  OF  THE  PEACE  GUIDE. 

execution  or  attachment  against  the  property  of  the 
plaintiff;  and  that  the  value  of  said  property  is  seventy 
dollars. 

JONATHAN  EDWARDS. 
Notary  Public,  etc. 

UNDERTAKING  IN  REPLEVIN. 

Whereas,  A  B,  plaintiff,  has  commenced  an  action  be- 
fore J  P,  one  of  the  justices  of  the  peace  in  and  for 
county,  against  C  D,  defendant,  for  the  re- 
covery of  certain  personal  property,  of  the  value  of 

dollars,  mentioned  and  described  in  the  affidavit 

of  the  plaintiff,  to  wit :  [Here  set  forth  the  property 
claimed.]  Now,  therefore,  we,  A  B,  plaintiff,  and  E 
F  and  G  H,  acknowledge  ourselves  bound  unto  C  D 

in  the  sum  of dollars,  for  the  prosecution  of  the 

action  for  the  return  of  the  property  to  the  defendant, 
if  return  thereof  be  adjudged,  and  for  the  payment  to 
him  of  such  sum  as  may  for  any  cause  be  recovered 
against  the  plaintiff. 

Dated  the day  of ,  19 

A  B,  E  F,  G  H. 

It  will  be  seen  from  this  that  the  essentials  of  replevin  are 
the  ownership  by  the  plaintiff  and  the  wrongful  detention 
by  the  defendant,  and  the  further  fact  that  the  property  is 
not  detained  under  legal  seizure. 

§  236.    JUSTICE'S  ORDER  FOR  DELIVERY. 

The  justice  shall  thereupon,  by  an  indorsement  in 
writing  upon  the  affidavit,  order  the  sheriff  or  any 
constable  of  the  county  to  take  the  same  from  the 
defendant  and  deliver  it  to  the  plaintiff  upon  receiving 
the  proper  bond.  [1798.] 

FORM. 
ORDER  OF  REPLEVIN. 

State  of  Washington, 
County  of ,  ss. 

To  the  Sheriff  or  Any  Constable  of  Said  County: 

In  the  name  of  the  state  of  Washington,  you  are 
hereby  commanded  to  take  the  personal  property  men- 
tioned and  described  in  the  within  affidavit,  and  deliver 


REPLEVIN.  123 

the  same  to  the  plaintiff,  upon  receiving  a  proper  un- 
dertaking, unless  before  such  delivery,  the  defendant 
enter  into  a  sufficient  undertaking  for  the  delivery 
thereof  to  the  plaintiff,  if  delivery  be  adjudged. 

Given  under  my  hand  this   ....  day  of   , 

19 

J  P, 

Justice  of  the  Peace. 

The  plaintiff  has  now  started  his  action.  He  has  made  and 
filed  his  affidavit  setting  forth  the  above  allegations,  and  the 
writ  is  now  ready  to  be  turned  over  to  the  sheriff  or  con- 
stable for  execution.  But  the  constable,  acting  even  under 
proper  orders,  at  least  on  their  face,  may  make  an  illegal 
and  wrongful  levy,  in  which  case  the  person  injured  may 
have  an  action  against  the  officer  for  such  illegal  levy.  To 
protect  himself,  therefore,  the  bond  of  two  sureties  is  sub- 
mitted to  the  constable,  whereupon  he  proceeds  to  make  the 
levy  in  the  manner  following: 

§  237.    EXECUTION. 

Upon  the  receipt  of  the  affidavit  and  order,  with  a 
bond,  executed  by  two  or  more  sufficient  sureties,  ap- 
proved by  the  sheriff  or  constable,  to  the  effect  that 
they  are  bound  in  double  the  value  of  the  property  as 
stated  in  the  affidavit,  for  the  prosecution  of  the  action, 
for  the  return  of  the  property  to  the  defendant,  if  re- 
turn thereof  be  adjudged,  and  for  the  payment  to  him 
of  such  sum  as  may  for  any  cause  be  recovered  against 
the  plaintiff,  the  sheriff  or  constable  shall  forthwith  take 
the  property  described  in  the  affidavit,  if  it  be  in  the 
possession  of  the  defendant  or  his  agent,  and  retain 
it  in  his  custody  He  shall  also,  without  delay,  serve 
on  the  defendant  a  copy  of  the  affidavit,  order  and 
bond,  by  delivering  the  same  to  him  personally,  if  he 
can  be  found  within  the  county,  or  to  his  agent  from 
whose  possession  the  property  is  taken,  or  if  neither 
can  be  found  in  the  county,  by  leaving  them  at  the 
usual  abode  of  either  within  the  county,  with  some 
person  of  suitable  age  and  discretion ;  or  if  neither  have 
any  known  place  of  abode  in  the  county  by  putting 
them  into  the  postoffice,  directed  to  the  defendant  at 
the  postoffice  nearest  to  him.  [1799.] 


124  JUSTICE  OF  THE  PEACE  GUIDE. 

Within  two  days  after  the  service  of  notice  upon  him,  the 
defendant  may  require  the  restoration  of  the  property  in 
dispute,  but  must  support  his  claim  by  giving  a  counter- 
bond,  executed  by  two  sureties,  double  the  value  of  the  prop- 
erty, securing  the  return  of  the  chattels  to  the  plaintiff  if  he 
be  awarded  them,  and  also  securing  payment  to  the  plaintiff 
of  what  sum  the  defendant  may  be  adjudged  to  owe  him. 

§  238.    DEFENDANT'S  COUNTER-BOND. 

At  any  time  before  the  delivery  of  the  property  to  the 
plaintiff  the  defendant  may,  if  he  do  not  except  to  the 
sureties  of  the  plaintiff,  require  the  return  thereof  upon 
giving  to  the  officer  a  bond,  executed  by  two  or  more 
sufficient  sureties,  to  the  effect  that  they  are  bound  in 
double  the  value  of  the  property  as  stated  in  the  affi- 
davit of  the  plaintiff,  for  the  delivery  thereof  to  the 
plaintiff,  if  such  delivery  be  adjudged,  and  for  the  pay- 
ment to  him  of  such  sum  as  may  for  any  cause  be  recov- 
ered against  the  defendant.  If  a  return  of  the  prop- 
erty be  not  so  required  within  two  days  after  the 
taking  and  serving  of  notice  to  the  defendant,  it  shall  be 
delivered  to  the  plaintiff,  except  as  provided  in  this 
article.  [1801.] 

§  239.     SURETIES— THEm  JUSTIFICATION. 

As  we  have  seen,  the  bond  is  executed  by  two  sureties  and 
must  be  satisfactory  to  the  officer  indemnified  by  such  bond. 
The  general  practice  is  to  have  the  wife  join  the  husband 
when  a  married  man  gives  bond;  both  parties  signing  their 
names  thereto  and  both  bound  thereon.  It  will  be  noticed 
that  the  bond  secures  the  payment  to  the  defendant  of  such 
sum  which  for  any  cause  may  be  awarded  him  from  the 
plaintiff,  and,  again,  of  course,  he  may  rightfully  detain  the 
disputed  property.  It  is  therefore  to  his  interest  to  see  that 
the  bondsmen  are  persons  of  sufficient  responsibility  to  war- 
rant accepting  them,  for  he  would  not  wish  to  have  a  judg- 
ment against  an  irresponsible  bondsman.  Whatever  objec- 
tions he  may  have,  therefore,  to  the  responsibility  of  the 
sureties  for  the  plaintiff,  he  must  give  notice  thereof  to  the 
officer  within  two  days  after  service  of  order,  bond  and  affi- 
davit upon  him. 


REPLEVIN.  125 

The  defendant  may,  within  two  days  after  the  service 
of  a  copy  of  the  affidavit,  order  and  bond,  give  notice 
to  the  officer  that  he  excepts  to  the  sufficiency  of  the 
sureties.  If  he  fail  to  do  so,  he  shall  be  deemed  to  have 
waived  all  objection  to  them.  When  the  defendant 
excepts,  the  sureties  shall  justify  upon  one  day's  notice 
before  the  justice;  and  the  officer  shall  be  responsible 
for  the  sufficiency  of  the  sureties  until  the  objection  to 
them  is  either  waived,  as  above  provided,  or  until  they 
justify,  or  new  sureties  be  substituted,  and  they  justify. 
If  the  defendant  except  to  the  sureties  he  cannot  re- 
claim the  property  as  provided  in  the  next  section  (i.  e., 
§238,  above).  [1800.] 

§  240.    THE  DEFENDANT'S  SURETIES. 

The  defendant's  sureties  on  the  counter-bond  are  also 
liable  to  objection  by  the  plaintiff,  and  the  plaintiff,  on  one 
day's  notice,  shall  require  them  to  justify  before  the  justice. 

The  defendant's  sureties,  upon  one  day's  notice  to  the 
plaintiff  or  his  attorney,  shall  justify  before  the  justice, 
and  upon  such  justification  the  officer  shall  deliver 
the  property  to  the  defendant.  The  officer  shall  be  re- 
sponsible for  the  defendant's  sureties  until  they  justify, 
or  until  the  justification  is  complete  or  expressly  waived, 
and  may  retain  the  property  until  tb.2it  time;  but  if 
they,  or  others  in  their  place,  fail  to  justify  at  the  time 
appointed,  he  shall  deliver  the  property  to  the  plain- 
tiff. [1802.] 

§  241.  CLAIM  OF  THIRD  PARTY  FOR  PROPERTY. 

Where  a  third  person  claims  the  disputed  property  as  his, 
the  sheriff  may  require  the  plaintiff  to  give  him  a  bond  in- 
demnifying him  against  the  new  claimant  before  he  sur- 
renders the  property  to  the  plaintiff. 

If  the  property  taken  be  claimed  by  any  other  per- 
son than  the  defendant,  or  his  agent,  and  such  person 
make  affidavit  of  his  title  thereto,  or  his  right  to  the 
possession  thereof,  stating  the  ground  of  such  title 
or  right,  and  serve  the  same  upon  the  officer  before  the 
delivery  of  the  property  to  the  plaintiff,  the  sheriff  shall 
not  be  bound  to  keep  the  property  or  deliver  it  to  the 
plaintiff,  unless  the  plaintiff,  on  demand  of  him  or  his 
agent,  indemnify  the  officer  against  such  claim  by  a 


126  JUSTICE  OP  THE  PEACE  GUIDE. 

bond  executed  by  two  sufficient  sureties,  accompanied 
by  their  affidavits  that  they  are  each  worth  double  the 
value  of  the  property  as  specified  in  the  affidavit  of 
the  plaintiff,  over  and  above  their  debts  and  liabilities, 
exclusive  of  property  exempt  from  execution,  and  free- 
holders or  householders  of  the  county;  and  no  claim  to 
such  property  by  any  other  person  than  the  defendant 
or  his  agent  shall  be  valid  against  the  officer,  unless 
made  as  aforesaid,  and  notwithstanding  such  claim, 
when  so  made,  he  may  retain  the  property  a  reasonable 
time  to  demand  such  indemnity.  [1805.] 

§  242.    EXECUTION— RIGHT  TO  BREAK  INTO  BUILD- 
INGS. 

If  the  property,  or  any  part  thereof,  be  concealed 
in  a  building  or  inclosure,  the  officer  shall  publicly  de- 
mand its  delivery;  and  if  it  be  not  delivered,  he  shall 
cause  the  building  or  inclosure  to  be  broken  open  and 
take  the  property  into  his  possession.  [1803.] 

§  243.  EXECUTION— OFFICER  SHALL  KEEP  AND  DE- 
LIVER CHATTEL. 

When  the  officer  shall  have  taken  property  as  in  this 
article  provided,  he  shall  keep  it  in  a  secure  place, 
and  deliver  to  the  party  entitled  thereto,  upon  receiving 
his  lawful  fees  for  taking  and  his  necessary  expenses 
for  keeping  the  same.  [1804.] 

§  244.    EXECUTION— THE   OFFICER'S  RETURN. 

The  officer  shall  return  the  order  and  affidavit  with 
his  proceedings  thereon  to  the  justice  within  five  days 
after  taking  the  property  mentioned  therein.  [1806.] 

FORMS. 
RETURN  ON  WRIT  OF  REPLEVIN. 

[Court  and  Cause.] 

I  hereby  certify  that  the  foregoing  and  within  requi- 
sition, affidavit  and  bond  came  to  my  hands  on  the  5th 
day  of  June,  1912,  and  that  thereupon  on  the  5th  day 
of  June,  1912,  in  the  city  of  Seattle,  King  County,  I  took 
the  following  property  described  in  said  affidavit,  to 
wit  [here  describe  the  property],  into  my  possession 
and  the  same  not  having  been  demanded  by  the  defend- 


REPLEVIN.  127 

ant,  or  any  third  person,  and  no  proper  bond  having 
been  delivered  to  me  by  the  defendant,  and  two  days 
having  elapsed  since  said  taking  and  since  the  service 
of  said  requisition,  affidavit  and  bond  upon  defendant, 
I  have  delivered  the  said  property  to  the  plaintiff;  and 
I  further  certify  that  on  the  5th  day  of  June,  1912, 
in  said  county,  I  served  the  said  requisition,  affidavit 
and  bond  upon  the  within-named  defendant,  by  deliv- 
ering a  true  copy  thereof  to  him  personally  then  and 
there  [or  by  delivering  at  the  usual  place  of  abode, 
mailing,  etc.]. 

HENRY  BADGE, 
Constable. 


INDEMNITY    TO    CONSTABLE    AGAINST    THIRD 

PERSON. 

Whereas,  L  M  claims  to  be  the  owner  of,  and  have 

-the  right  to  possession  of  certain  personal  property, 

to  wit  [here  describe  it],  which  has  been  taken  by  J 

K,  constable  in county,  upon  an  execution  by 

J  P,  justice  of  the  peace  in  and   for   the   county   of 

,  upon  a  judgment  obtained  by  A  B,  plaintiff, 

against  C  D,  defendant ;  now,  therefore,  we,  A  B,  plain- 
tiff, E  F  and  G  H,  acknowledge  ourselves  bound  unto 

the  said  J  K,  constable,  in  the  sum  of dollars, 

to  indemnify  the  said  J  E  against  such  claim. 

.  A  B,  E  F,  G  H. 


128  JUSTICE  OF  THE  PEACE  GUIDE. 


OHAPTEE  XV. 

GARNISHMENT. 

§  245.  Who  may  be  garnished. 

§  246.  Affidavit  for  writ  of  garnishment. 

§  247.  Writ  of. 

§  248.  Writ  to  be  indorsed. 

§  249.  Service. 

§  250.  Service  binding  on  garnishee. 

§  251.  Service  upon  bank. 

§  252.  Answer  of  garnishee. 

§  253.  Answer  when  names  are  uncertain. 

§  254.  Answer — Pleading — Defense. 

§  255.  Answer  of  garnishee  controverted. 

§  256.  Bond  of  defendant. 

§  257.  Garnishee  defendant  discharged  when. 

§  258.  Garnishee  to  surrender  property. 

§  259.  Judgment  on  default  of  garnishee  defendant. 

§  260.  Judgment  against  garnishee  on  the  answer. 

§  261.  Execution  of  judgment  against  garnishee. 

§  262.  Refusal  of  garnishee  to  deliver  is  contempt. 

§  263.  Costs  allowed  garnishee  on  controverted  answer. 

§  284.  Garnishment  of  corporation, 

§  265.  Conduct  of  sale. 

§  266.  Sale  conveys  title. 

Garnishment  can  be  best  explained  by  a  simple  illus- 
tration: Suppose  that  A  owes  B  ten  dollars  and  that  B  is 
working  for  C.  A  starts  an  action  against  B  for  the  recov- 
ery of  the  ten  dollars  and  as  A  knows  that  C  owes  B  money 
for  wages,  he  serves  a  writ  of  garnishment  on  C.  This 
means  that  C  must  come  into  court  on  the  return  day,  either 
in  person  or  by  his  affidavit,  and  state  how  much  money 
he  owed  B  at  the  time  the  writ  of  garnishment  was  served 
upon  him.  Then  if  A  gets  judgment  against  B,  he  gets  the 
money  from  C,  if  C  owes  B  that  much.  If  C  ignores  the 
writ  of  garnishment,  he  is  liable  to  have  judgment  rendered 
against  him  in  favor  of  A.  A  and  B  are  the  principals  in 
the  suit  and  C  is  called  the  garnishee.  The  appearance  of 
the  garnishee  is  called  his  "answer."  Municipal  corpora- 


GARNISHMENT.  12& 

tions,  cities,  counties  and  states  generally  are  not  subject  to 
garnishment. 

"Generally  speaking,  it  is  a  mode  of  attachment  or  execu- 
tion, where  money  or  property  of  a  debtor  in  the  hands  of 
third  persons  is  levied  upon,  and  by  subsequent  proceed- 
ings in  the  court  wherein  the  original  action  is  pending, 
subjected  to  payment  of  the  claim  of  a  judgment  creditor. 
Technically,  it  is  a  process  in  aid  of  writ  of  execution  and 
attachment,  whereby  one  not  a  party  to  the  cause  wherein 
the  process  issues  is  notified  to  appear  in  court  and  dis- 
close whether  he  is  indebted  to,  or  has  in  his  possession  prop- 
erty belonging  to  the  defendant  in  such  cause,  and  if  so, 
that  he  shall  not  pay  such  indebtedness  nor  surrender  such 
property  until  further  order  of  the  court."  (Am.  &  Eng.  8- 
1097.) 

§  245.    WHO  MAY  BE  GARNISHED. 

Private  corporations  may  be  garnished.  As  we  have  seen, 
public  or  municipal  corporations  are  not  subjected  to  gar- 
nishment. 

Attorneys  at  law  may  be  garnished  for  money  or  prop- 
erty in  their  hands. 

Persons  acting  as  agents  in  the  private  sense,  not  as  agents 
of  municipal  corporations. 

The  justice  of  the  peace  has  authority  to  issue  writs  of 
garnishment.  This  was  not  always  the  case,  but  the  be- 
stowal of  this  authority  upon  him  has  proved  of  great  assist- 
ance in  the  collection  of  honest  debts. 

The  justice  of  the  peace  in  the  various  precincts  in 
the  state  may  issue  writs  of  garnishment,  returnable  to 
tLjeir  respective  courts,  where  the  plaintiff  sues  for  a 
debt  •which  is  just,  due  and  unpaid ;  or  where  the  plain- 
tiff has  a  judgment  wholly  or  partially  unsatisfied  in 
the  court  from  which  he  seeks  to  have  the  writ  of  gar- 
nishment issued.  [Sess.  Laws  1911,  c.  126,  H.  B.  2.] 

As  will  be  seen  from  this  section,  the  writ  of  garnishment 

is  issued  upon  the  affidavit  of  the  plaintiff  or  his  attorney 

setting  forth  the  fact  that  the  debt  is  just  and  unpaid.     This 

is  a  collateral  action  with  the  principal  suit;  the  affidavit 

9 


130  JUSTICE  OF  THE  PEACE  GUIDE. 

generally  accompanying  the  complaint  and  are  filed  together. 
The  justice's  docket  gives  one  page  to  the  complaint  or  ac- 
tion proper  and  the  opposite  page  to  the  proceedings  in  gar- 
nishment. 

§  246.    AFFIDAVIT  FOR  WRIT  OF  GARNISHMENT. 

Before  the  issuance  of  the  writ  of  garnishment,  the 
plaintiff,  or  someone  in  his  behalf,  shall  make  applica- 
tion therefor  by  affidavit,  stating  the  facts  authorizing 
the  issuance  of  the  writ,  and  that  he  has  reason  to  be- 
lieve and  does  believe  that  the  garnishee  13  indebted  to 
the  defendant  or  that  he  has  in  his  possession  or  under 
his  control  personal  property  or  effects  belonging  to  the 
defendant,  or  that  the  garnishee  is  a  corporation,  and 
that  the  defendant  is  the  owner  of  shares  of  the  capital 
stock  thereof,  and  that  the  garnishment  applied  for 
is  not  sued  out  to  injure  either  the  defendant  or  the 
garnishee.  [Laws  1911,  c.  126,  H.  B.  2.] 

FORM. 

AFFIDAVIT  FOR  GARNISHMENT. 
[Court  and  Cause.] 
[Plaintiff.] 
[Defendant.] 
[Garnishee  Defendant.] 

State  of  Washington, 
County  of  King, — ss. 

Simon  Peuer,  being  first  duly  sworn,  on  oath  deposes 
and  says:  That  he  is  attorney  for  the  plaintiff  in  the 
above-entitled  action;  that  he  makes  this  affidavit  on 
behalf  of  the  plaintiff  for  the  purpose  of  securing  the 
issuance  of  a  writ  of  garnishment  against  the  defendant 
directed  to  Richard  Heyer  as  garnishee ;  that  the  plain- 
tiff and  this  affiant  have  reason  to  believe,  and  do  be- 
lieve, that  Richard  Heyer,  residing  at  Boonton,  in  King 
County,  state  of  Washington,  is  indebted  to  Jonathan 
Quibble,  the  defendant  above  named,  or  that  he  has 
in  his  possession  or  under  his  control  property  or  ef- 
fects belonging  to  the  defendant;  and  that  garnishee 
defendant  is  a  corporation,  and  defendant  is  the  owner 
of  ten  shares  of  the  capital  stock  thereof;  that  the  plain- 


GARNISHMENT.  131 

tiff  above  named  sues  herein  for  a  debt,  and  that  the 
same  is  just,  due  and  unpaid,  and  the  garnishment 
hereby  applied  for  is  not  sued  out  to  injure  either  the 
defendant  or  said  garnishee. 


Subscribed  and  sworn  to  before  me  this  ....  day  of 
,  A.  D.  19 


Notary  Public  for  the  State  of  Washington,  Residing  at 
Seattle  in  Said  State. 

The  person  to  whom  the  writ  of  garnishment  is  directed 
is  termed  the  "garnishee."  The  writ  directs  him  to  appear 
before  the  court  on  the  same  day  and  hour  as  the  principal 
defendant  is  directed  in  the  notice. 

§  247.    WRIT  OP. 

When  the  foregoing  requisites  have  been  compEed 
with,  the  justice  of  the  peace  shall,  without  additional 
fee,  docket  the  case  in  the  name  of  the  plaintiff,  as  plain- 
tiff, and  of  the  garnishee  as  defendant,  and  shall  imme- 
diately issue  a  writ  of  garnishment,  directed  to  the  gar- 
nishee, commanding  him  to  appear  before  the  justice 
who  issues  the  writ,  at  a  certain  place,  day  and  hour, 
which  shall  not  be  less  than  six  nor  more  than  twenty 
days  from  the  date  of  the  issuance  of  the  writ,  to  answer 
on  oath  in  what  amount,  if  any,  he  was  indebted  to  the 
defendant,  and  what  personal  property  or  effects,  if  any, 
of  the  defendant  he  had  in  his  possession  or  under  his 
control  when  such  writ  was  served  upon  him,  and  where 
it  appears  from  the  affidavit  for  the  writ  that  the  gar- 
nishee is  a  corporation  in  which  the  defendant  is  the 
owner  of  shares,  the  writ  of  garnishment  shall  further 
require  the  garnishee  to  answer  what  number  of  shares, 
if  any,  the  defendant  owned  in  such  corporation  when 
such  writ  was  served  upon  it.  The  writ  of  garnish- 
ment shall  be  served  at  least  five  days  before  the  time 
fr-r  answer  mentioned  therein,  [Laws  1911,  c.  126,  H. 
B.  2.] 


132  JUSTICE  OF  THE  PEACE  GUIDE. 

FORM. 
WRIT  OF  GARNISHMENT. 

£Court  and  Cause.] 
[Plaintiff.] 
[Defendant.] 
[Garnishee  Defendant.] 

The  State  of  Washington  to  John  Heyer,  Greeting: 

Whereas,  in  the  justice  court,  Seattle  Precinct,  King 
County,  state  of  Washington,  before  the  undersigned 
justice  of  the  peace,  in  a  certain  cause  wherein  Nathan- 
iel Grumble  is  plaintiff  and  Jonathan  Quibble  is  de- 
fendant, the  plaintiff  having  a  judgment  [or  claiming 
an  indebtedness]  against  the  said  Jonathan  Quibble  of 
eighty  dollars  ($80),  besides  interest  from  March  1, 
1911,  at  8  per  cent  per  annum,  and  cost  of  suit,  has, 
applied  for  a  writ  of  garnishment  against  you: 

Now,  therefore,  you  are  hereby  commanded  to  be  and 
appear  before  the  undersigned  justice  in  his  courtroom, 
number  602  Prefontaine  Building,  Seattle,  King  County, 
Washington,  on  the  12th  day  of  December,  1912,  at 
9:30  o'clock  in  the  forenoon,  then  and  there  to  answer 
upon  oath  in  what  amount,  if  any,  you  are  indebted 
to  the  said  Jonathan  Quibble  when  this  writ  was  served 
upon  you,  and  what  effects,  if  any,  of  the  said  Jonathan 
Quibble  you  had  in  your  possession  or  under  your  con- 
trol when  this  writ  was  served  upon  you,  and  further 
to  answer  what  number  of  shares,  if  any,  said  Jonathan 
Quibble  owned  in  the  Hirsute  Cultural  Company,  a  cor- 
poration, when  this  writ  was  served  upon  you. 
Dated  this day  of 19 


Justice  of  the  Peace,  Seattle  Precinct,  King  County, 
Washington. 

Indorsed  by  attorney  for  plaintiff. 


Office  and  postoffice  address:  Building,  Seattle, 

King  County,  Washington. 

;  Ind (phone  numbers). 


GARNISHMENT.  133 

State  of  Washington, 
County  of  King, — ss. 

I  hereby  certify  that  the  foregoing  is  a  trne  copy 
of  the  original  writ  of  garnishment  in  the  above-entitled 
cause. 

Dated  this day  of ,  A.  D.  19 


The  writ  should  be  indorsed  with  the  name  and  address 
of  the  plaintiff 's  attorneys,  and,  in  the  larger  precincts,  such 
writs  also  carry  the  telephone  number  of  the  attorney's 
office. 

§  248.    WRIT  TO  BE  INDORSED. 

The  writ  of  garnishment  shall  be  dated  and  signed  by 
the  justice  of  the  peace,  and  the  name  and  office  address 
~  of  the  attorney  for  the  plaintiff  shall  be  indorsed  there- 
on, or  in  case  the  plaintiff  has  no  attorney,  then  the 
name  and  address  of  the  plaintiff  shall  be  indorsed 
thereon.  The  writ,  when  so  issued  and  indorsed,  shall 
be  delivered  by  the  justice  of  the  peace  who  issues  it 
to  the  party  applying  therefor,  or  to  his  attorney. 
[1827.] 

The  practice  generally  is  for  the  attorney  to  fill  out  the 
writ  of  garnishment  himself  and  secure  the  signature  of 
the  justice  when  the  writ  is  filed.  He  then  serves  the  gar- 
nishee  with  a  copy  of  the  writ. 

§  249.    SERVICE. 

The  writ  of  garnishment  may  be  served  by  the  sheriff 
or  any  constable  of  the  county  in  which  the  garnishee 
lives,  or  it  may  be  served  by  any  citizen  of  the  state  of 
Washington,  over  the  age  of  twenty-one  years  and  not 
a  party  to  the  action  in  which  it  is  issued,  in  the  same 
manner  as  a  summons  in  an  action  is  served.  And  in 
case  such  writ  is  served  by  an  officer,  such  officer  shall 
make  his  return  thereon,  showing  the  time,  place  and 
manner  of  service  and  noting  thereon  his  fees  for  mak- 
ing such  service  and  shall  sign  his  name  to  such  return. 
In  case  such  service  is  made  by  any  person  other  than  an 
officer,  such  person  shall  attach  to  the  original  writ  his 
affidavit  showing  his  qualifications  to  make  such  service 
and  the  time,  place  and  manner  of  making  service,  but 


134  JUSTICE  OF  THE  PEACE  GUIDE. 

no  fee  shall  be  allowed  for  the  service  of  snch  writ  un- 
less the  same  is  served  by  an  officer.    [1828.] 

The  effect  of  the  service  of  the  writ  of  garnishment  is 
to  compel  the  garnishee  to  hold  all  funds  and  property  in 
his  hands  until  the  trial  and  adjudication  of  the  rights  of 
the  parties  to  the  main  action. 

§  250.    SERVICE  BINDING  ON  GARNISHEE. 

From  and  after  the  service  of  such  writ  of  garnish- 
ment, it  shall  not  be  lawful  for  the  garnishee  to  pay  to 
the  defendant  any  debt  owing  to  him  at  the  time  of  such 
service,  or  to  deliver  to  him  any  personal  property  or 
effects  belonging  to  the  defendant  in  his  possession  or 
under  his  control  at  the  time  of  such  service,  nor  shall 
the  garnishee,  if  it  be  a  corporation  in  which  the  defend- 
ant is  alleged  to  be  the  owner  of  shares,  permit  or  rec- 
ognize any  sale  or  transfer  of  any  shares  owned  by  said 
defendant  at  the  time  of  such  service;  and  any  such 
payment,  delivery,  sale  or  transfer  shall  be  void  and  of 
no  effect  as  to  so  much  of  said  debt,  personal  property 
or  effects  or  shares  as  may  be  necessary  to  satisfy  the 
plaintiff's  demand.  [1830.] 

When  garnishing  a  bank,  the  procedure  is  a  little  differ- 
ent. A  written  statement  must  accompany  the  writ  of  gar- 
nishment, in  which  statement  the  plaintiff  sets  forth  the 
residence  and  business  of  the  defendant,  and  unless  this 
is  done  the  bank  cannot  be  held  liable  for  any  payment 
it  may  make  to  the  defendant. 

§  251.    SERVICE  UPON  BANK. 

In  cases  where  the  writ  of  garnishment  issued  under 
the  provisions  of  this  act  is  directed  to  a  corporation 
carrying  on  a  general  banking  business  in  the  state  of 
Washington,  the  plaintiff,  in  addition  to  serving  the  writ 
of  garnishment  upon  said  garnishee,  shall  at  the  same 
time  and  as  a  part  of  said  service  deliver  to  said  gar- 
nishee a  statement  in  writing  signed  by  the  plaintiff  or 
his  attorney,  stating  the  place  of  residence  of  the  de- 
fendant and  his  business,  occupation,  trade  or  profes- 
sion, and  unless  such  statement  is  so  delivered  with  said 
writ  of  garnishment,  the  service  of  said  writ  shall  not 
be  deemed  complete  and  the  garnishee  shall  not  be  held 
liable  thereon.  [1829.] 


GARNISHMENT.  135 

The  next  step  is  for  the  garnishee  to  make  his  answer  to 
the  writ.  The  answer  must  be  a  signed  writing,  and  shall 
answer  truly  concerning  the  things  inquired  of  in  the  writ. 

§  252.    ANSWER  OF  GARNISHEE. 

The  answer  of  the  garnishee  shall  be  in  writing  and 
signed  and  verified  as  other  pleadings  and  shall  make 
true  answers  to  the  several  matters  inquired  of  in  the 
writ  of  garnishment  and  shall  be  served  upon  the  plain- 
tiff or  his  attorney  and  filed  with  the  justice  of  the  peace 
who  issued  said  writ.  [1832.] 

FORM. 
ANSWER  OF  GARNISHEE  DEFENDANT. 

[Court  and  Cause.] 
'  [Plaintiff.] 
[Defendant.] 
[Garnishee  Defendant.] 

Comes  now  the  above-named  garnishee  defendant  and 
answering  the  writ  of  garnishment  herein  avers : 

I. 

That  said  writ  was  served  upon  me  [us]  on  the  3d 
day  of  December,  1912,  at  4  o'clock  P.  M. 

n. 

That  at  the  time  of  service  of  said  writ  I  was  indebted 
to  defendant  in  the  sum  of  forty  dollars  and  had  no  per- 
sonal property  and  effects  in  my  possession  or  in  my  con- 
trol, and  defendant  owned  no  shares  in  the  Hirsute  Cul- 
tural Company,  a  corporation. 


Garnishee  Defendant. 

State  of  Washington, 
County  of  King, — ss. 

John  Heyer,  the  garnishee  defendant  herein,  first  duly 
sworn,  on  oath  deposes  and  says,  that  he  is  the  garnishee 
defendant  above  named ;  that  he  has  read  the  foregoing 
answer,  knows  the  contents  thereof  and  believes  the 
game  to  be  true. 


136  JUSTICE  OF  THE  PEACE  GUIDE. 

Subscribed  and  sworn  to  before  me  this day  of 

,19.... 


Notary  Public  for  the  State  of  Washington,  Residing  at 
Seattle  in  Said  State. 

§  253.  ANSWER  WHEN  NAMES  ARE  UNCERTAIN. 

Where  the  garnishee  in  his  answer  states  that  he  was 
indebted  or  had  personal  property  or  effects  in  his  pos- 
session under  his  control  at  the  time  of  the  service  of  the 
writ  of  garnishment  upon  him  to  a  person  of  the  same 
or  similar  name  to  the  defendant,  and  stating  the  place 
of  business  or  residence  of  said  person,  and  that  he  does 
not  know  whether  or  not  such  person  is  the  same  person 
as  the  defendant,  and  prays  the  court  to  determine 
whether  or  not  the  person  to  whom  he  was  indebted  or 
whose  personal  property  or  effects  he  had  in  his  posses- 
sion is  the  same  person  as  the  defendant,  the  court,  before 
rendering  judgment  against  the  garnishee  defendant  as 
hereinbefore  provided,  shall  take  proof  as  to  the  identity 
of  said  persons,  and  if  he  should  find  therefrom  that 
they  are  not  one  and  the  same  individual,  the  garn- 
ishee shall  be  discharged  and  shall  have  and  recover 
his  costs  against  the  plaintiff;  and  if  he  should  find 
that  said  persons  are  one  and  the  same  individuals, 
he  shall  make  a  similar  judgment  as  to  payment  of 
the  money  or  the  delivery  of  personal  property  and 
effects  and  as  to  costs  of  the  garnishee  as  hereinbefore 
provided,  where  the  garnishee  is  held  upon  his  answer. 
Before  any  such  hearing  on  the  question  of  identity  is 
had,  the  plaintiff  shall  cause  the  justice  of  the  peace  to 
issue  a  citation  directed  to  the  person  to  whom  the  gar- 
nishee answers  he  was  indebted  or  whose  personal  prop- 
erty or  effects  the  garnishee  has  answered  he  had  in  his 
possession  or  under  his  control,  commanding  him  to  ap- 
pear before  the  justice  of  the  peace  from  which  it  is  is- 
sued within  ten  days  after  the  service  of  the  same  upon 
him,  and  to  answer  on  oath  whether  or  not  he  is  the 
same  person  as  the  defendant  in  said  action.  Said  cita- 
tion shall  be  dated  and  attested  in  like  manner  as  a  writ 
of  garnishment  and  be  delivered  to  the  plaintiff  or  his 
attorney  and  shall  be  served  in  the  same  manner  as  a 
summons  in  an  action  is  served.  If  upon  the  hearing  in 
this  section  provided  for,  the  court  shall  find  that  the  de- 
fendant or  judgment  debtor  is  the  same  person  as  the 
person  to  whom  the  garnishee  defendant  was  indebted, 


GARNISHMENT.  137 

or  whose  personal  property  or  effects  said  garnishee  de- 
fendant had  in  his  possession  or  under  his  control,  it 
shall  be  sufficient  answer  to  any  claim  of  said  person 
against  the  garnishee  founded  on  any  indebtedness  of 
such  garnishee  or  on  the  possession  by  him  of  any  per- 
sonal property  or  effects  for  the  garnishee  to  show  that 
such  indebtedness  was  paid  or  such  personal  property  or 
effects  delivered  under  the  judgment  of  the  court  in  ac- 
cordance with  the  provisions  of  this  act.  [1845.] 

§  254.  ANSWER— PLEADING— DEFENSE. 

The  garnishee  need  not  in  his  answer  set  forth  any  defense 
or  claim  and  exemptions  which  may  be  due  the  defendant. 
The  defendant's  privileges  in  this  respect  are  not  interfered 
with  by  the  operation  of  this  statute. 

It  shall  not  be  necessary  for  the  garnishee  to  plead  or 
'  set  forth  in  his  answer  any  defense  which  the  defendant 
might  have  to  the  cause  of  action  against  him,  nor  to 
plead  or  set  forth  in  his  answer  any  claim  of  exemption 
which  may  be  available  to  the  defendant,  but  this  section 
shall  not  be  construed  to  preclude  the  defendant  from 
pleading,  claiming  or  asserting  any  exemption  which 
may  be  available  to  him  under  the  laws  of  the  state  of 
Washington  now  in  force  or  hereafter  to  be  enacted. 
[1846.] 

§  255.    ANSWER  OF  GARNISHEE  CONTROVERTED. 

When  the  plaintiff  thinks  that  the  garnishee  has  not  made 
complete  or  truthful  answer  to  the  writ,  he  shall  so  state  to 
the  justice,  who  will  try  the  issue  thus  raised  as  in  other 
cases. 

If  the  plaintiff  should  not  be  satisfied  with  the  answer 
of  the  garnishee,  he  shall  state  such  fact  to  the  justice  of 
the  peace,  who  shall  thereupon  enter  the  fact  in  his 
docket,  and  an  issue  shall  be  formed  under  the  direction 
of  the  court  and  tried  as  other  cases:  Provided,  however, 
no  pleading  shall  be  necessary  on  such  issue  other  than 
the  affidavit  of  the  plaintiff,  the  answer  of  the  garnishee 
and  the  statement  of  the  plaintiff  that  he  is  not  satisfied 
with  the  answer.  [1842.] 

The  writ  of  garnishment  shall  be  discharged  upon  the 
filing  of  a  bond,  executed  to  the  plaintiff,  that  the  defend- 


138  JUSTICE  OF  THE  PEACE  GUIDE. 

ant  will  pay  the  judgment  that  may  be  rendered  against 
him.  The  point  of  this  provision  is  this:  that  garnishment 
is  only  a  means  of  securing  the  payment  of  a  debt — if  the 
defendant  puts  up  a  bond  with  approved  sureties,  the  pro- 
tection is  the  same  as  on  the  writ. 

§  256.    BOND  OP  DEFENDANT. 

If  the  defendant  in  the  principal  action  causes  a  bond 
to  be  executed  to  the  plaintiff,  with  sureties,  to  be  ap- 
proved by  the  justice  of  the  peace  issuing  the  writ,  con- 
ditioned that  he  will  pay  any  judgment  that  may  be  ren- 
dered against  him  in  favor  of  the  plaintiff  in  said  action, 
and  shall  file  said  bond  with  said  justice  of  the  peace, 
the  writ  of  garnishment  shall,  upon  the  filing  and  ap- 
proval of  said  bond,  be  immediately  discharged,  and  all 
proceedings  had  thereunder  shall  be  vacated  and  said 
justice  shall  issue  and  deliver  to  said  defendant  a  certifi- 
cate to  the  effect  that  said  writ  of  garnishment  has  been 
discharged,  and  upon  the  delivery  of  said  certificate  to 
the  garnishee  he  shall  be  discharged  of  any  further  lia- 
bility under  said  writ :  Provided,  that  the  garnishee  shall 
not  be  thereby  deprived  from  recovery  of  costs  in  said 
proceeding  to  which  he  would  otherwise  be  entitled 
under  this  act.  [1831.] 

§  257.   GAENISHEE  DEFENDANT  DISCHARGED  WHEN. 

When  it  appears  from  the  sworn  answer  of  the  garnishee 
that  he  is  not  indebted  to  the  defendant  and  has  no  per- 
sonal property  under  his  control,  he  is  discharged. 

Should  it  appear  from  the  answer  of  the  garnishee  that 
he  was  not  indebted  to  the  defendant  when  the  writ  of 
garnishment  was  served  upon  him  and  that  he  had  not 
in  his  possession  or  under  his  control  any  personal  prop- 
erty or  effects  of  the  defendant  when  the  writ  was 
served ;  and  when  the  garnishee  is  a  corporation  in  which 
the  defendant  is  alleged  to  be  the  owner  of  shares  of 
stock,  if  it  shall  further  appear  from  such  answer  that 
the  defendant  was  not  the  owner  of  any  such  shares 
when  the  writ  was  served,  and  should  the  answer  of  the 
garnishee  not  be  controverted  as  hereinafter  provided, 
the  court  shall  enter  judgment  discharging  the  gar- 
nishee. [1833.] 


GARNISHMENT.  139 

§  258.     GARNISHEE  TO  SURRENDER  PROPERTY. 

Should  it  appear  from  the  answer  of  the  garnishee,  or 
should  it  be  made  otherwise  to  appear,  as  hereinafter 
provided,  that  the  garnishee  had  in  his  possession  or 
under  his  control  when  the  writ  was  served  upon  hi™, 
any  personal  property  or  effects  of  the  defendant  liable 
to  execution,  the  court  shall  render  a  decree  requiring 
the  garnishee  to  deliver  up  to  the  justice  on  demand, 
such  personal  property  or  effects,  or  so  much  of  them  as 
may  be  necessary  to  satisfy  the  plaintiff's  claim.  In 
cases  where  a  judgment  has  been  rendered  in  the  prin- 
cipal action,  such  personal  property  or  effects  may  be 
sold  in  like  manner  as  other  property  is  sold  upon  execu- 
tion on  a  judgment.  In  cases  where  judgment  has  not 
been  rendered  in  the  principal  action,  the  justice  of  the 
peace  shall  retain  such  personal  property  or  effects  in 
his  possession  until  the  rendition  of  the  judgment 
therein,  and  in  case  judgment  is  entered  in  such  prin- 
cipal action  in  favor  of  the  plaintiff,  said  goods,  or 
effects,  or  sufficient  of  them  to  satisfy  said  judgment, 
may  be  sold  in  like  manner  as  other  property  is  sold  upon 
an  execution  issued  on  a  judgment.  In  case  judgment 
shall  be  rendered  in  such  action  against  the  plaintiff  and 
in  favor  of  the  defendant,  such  effects  and  personal  prop- 
erty shall  be  by  the  justice  returned  to  the  defendant. 
[1837.] 

§  259.  JUDGMENT  ON  DEFAULT  OF  GARNISHEE  DE- 
FENDANT. 

If  the  plaintiff  recover  judgment  against  the  defendant 
in  the  main  action,  judgment  shall  be  had  against  the  gar- 
nishee if  the  garnishee  is  in  default;  that  is,  if  he  has  not 
made  and  served  his  sworn  answer  as  provided  in  these 
statutes.  Such  judgment  is  not  operative  against  the  gar- 
nishee until  judgment  has  been  rendered  in  the  principal 
action. 

Should  the  garnishee  fail  to  answer  the  writ  within 
the  time  prescribed  therein,  the  court  shall,  upon  appli- 
cation of  the  plaintiff  therefor,  declare  and  enter  the  de- 
fault of  the  garnishee  and  shall  thereafter  render  judg- 
ment as  follows:  In  case  the  plaintiff  has  a  judgment 
against  the  defendant,  judgment  shall  be  rendered 
against  the  garnishee  for  the  full  amount  of  such  judg- 
ment with  all  accruing  interest  and  costs. 


140  JUSTICE  OP  THE  PEACE  GUIDE. 

In  case  judgment  has  not  been  rendered  in  the  prin- 
cipal action  at  the  time  when  the  default  of  the  gar- 
nishee  is  declared  and  entered,  final  judgment  shall  not 
be  rendered  against  the  garnishee  until  the  final  judg- 
ment in  the  principal  action  is  entered,  and  if  the  plain- 
tiff recovers  judgment  against  the  defendant  the  court 
shall  enter  judgment  against  the  garnishee  for  full 
amount  of  the  judgment  awarded  to  the  plaintiff  against 
the  defendant ;  but  if  the  plaintiff  fails  to  recover  judg- 
ment against  the  defendant,  the  garnishee  shall  be  dis- 
charged without  costs.  [Laws  1911,  c.  126,  H.  B.  2.] 

FORM. 

This  cause  coming  on  regularly  to  be  heard  on  this 

.....  day  of ,19 ,  at  9:30  A.  M.,  plaintiff. . 

appearing  by attorney, ;  and  it  appear- 
ing to  the  court  by  affidavit  of that  the  writ 

of  garnishment  in  this  cause  was  duly  and  regularly 

served  upon  the  garnishee  defendant. .  herein ; 

and  the  court  having  waited  one  full  hour  after  the  time 
set  in  said  writ  of  garnishment  for  the  hearing,  and  the 
garnishee  defendant.,  having  failed  to  appear  or  an- 
swer ;  and  it  further  appearing  that  the  plaintiff . .  is 
entitled  to  an  order  of  default  against  the  garnishee  de- 
fendant . .  herein,  and  a  judgment  having  been  entered 
against  the  principal  defendant  in  the  main  action,  and 
the  court  being  fully  advised  in  the  premises ; 

It  is  ordered,  adjudged  and  decreed,  that  the  default 

of  the  garnishee  defendant be,  and  the  same 

is  hereby  entered,  and  that  the  plaintiff. .  herein  do  have 
and  recover  of  and  from  the  garnishee  defendant. . 
herein the  sum  of dollars  ($ ),  to- 
gether with  the  costs  of  this  garnishment,  taxed  as  fol- 
lows, to  vat:  Justice's  fee  $ ;  constable  fee, 

$ ;  total  costs,  $ ;  total  of  judgment,  $ 

Dated  this day  of ,19 


Justice  of  the  Peace. 

§  260.    JUDGMENT   AGAINST    GARNISHBE    ON    THE 
ANSWER. 

The  plaintiff  secures  judgment  against  the  garnishee  when 
the  garnishee 's  answer  shows  that  he  is  indebted  to  the  de- 


GARNISHMENT.  141 

fendant,  judgment  being  first  awarded  the  plaintiff  in  the 
principal  action. 

Should  it  appear  from  the  answer  of  the  garnishee,  or 
should  it  be  otherwise  made  to  appear  as  hereinafter  pro- 
vided, that  the  garnishee  was  indebted  to  the  defendant 
in  any  amount  when  the  writ  of  garnishment  was  served 
upon  him,  the  court  shall  render  judgment  for  the  plain- 
tiff against  such  garnishee  for  the  amount  so  admitted 
or  found  to  be  due  from  the  garnishee,  less  the  amount 
of  the  costs  awarded  to  the  garnisiiee,  unless  the  amount 
so  admitted  or  found  to  be  due  shall  exceed  the  amount 
cf  the  judgment  rendered  or  thereafter  rendered  in 
favor  of  the  plaintiff  against  the  defendant,  with  inter- 
est and  costs  in  which  case  it  shall  be  for  the  amount  of 
such  judgment  rendered  or  thereafter  to  be  rendered, 
with  interest  and  costs:  Provided,  however,  that  judg- 
ment shall  not  be  rendered  against  the  garnishee  until 
„  the  final  judgment  in  the  principal  action  is  entered,  and 
if  the  plaintiff  fails  to  recover  judgment  against  the  de- 
fendant the  garnishee  shall  be  discharged  and  shall  have 
and  recover  his  costs  against  plaintiff:  Provided,  how- 
ever, if  it  shall  appear  from  the  answer  of  the  garnishee 
and  the  same  is  not  controverted,  or  if  it  snail  appaar 
from  the  trial  hereinafter  provided  for  that  the  gar- 
nishee was  indebted  to  the  defendant  in  any  sum  at  the 
tune  of  the  service  of  said  writ,  but  that  said  indebted- 
ness is  not  matured  and  is  not  due  and  payable,  the  court 
shall  make  an  order  requiring  the  garnishee  to  pay  such 
sum  into  court  when  the  same  becomes  due,  less  the 
amount  of  the  costs  awarded  to  the  garnishee,  the  date 
when  such  payment  is  to  be  made  to  be  specified  in  said 
order,  and  in  default  thereof  that  judgment  shall  be  en- 
tered against  the  garnishee  for  the  amount  of  such  in- 
debtedness so  admitted  or  found  to  be  due.  In  case  the 
garnishee  shall  pay  said  sum  at  the  time  specified  in 
said  order,  said  payment  shall  operate  as  a  discharge; 
otherwise  judgment  shall  be  entered  against  him  as 
above  provided:  Provided,  further,  that  if  judgment 
shall  be  rendered  in  favor  of  the  principal  defendant,  or 
if  any  judgment  rendered  against  him  shall  be  satisfied 
prior  to  the  date  of  payment  specified  in  said  order,  the 
garnishee  shall  not  be  required  to  make  the  payment 
hereinbefore  provided  for,  nor  shall  any  judgment  in 
such  case  be  against  him.  [1835.] 


142  JUSTICE  OF  THE  PEACE  GUIDE. 

§  261.    EXECUTION   OF   JUDGMENT   AGAINST   GAB- 
NISHEE. 

Executions  on  judgment  against  the  garnishee  may  gen- 
erally be  issued  in  the  same  manner  as  the  execution  of  any 
other  civil  judgment  issuing  from  the  justice's  court. 

Execution  may  be  issued  on  the  judgment  against  the 
garnishee  herein  provided  for  in  like  manner  as  upon 
any  other  judgment.  The  amount  made  upon  any  such 
execution  shall  be  paid  by  the  officer  executing  the  same 
to  the  justice  of  the  peace  from  whom  such  execution 
was  issued,  and  shall  be  applied  to  the  satisfaction  of 
such  judgment,  interest  and  costs  and  also  to  the  satis- 
faction of  the  judgment  against  the  defendant,  and  the 
surplus,  if  any,  shall  be  paid  to  the  garnishee.  [1836.] 

§  262.    REFUSAL   OF    GARNISHEE    TO    DELIVER   IS 
CONTEMPT. 

Should  the  garnishee  adjudged  to  have  effects  or  per- 
sonal property  of  the  defendant  in  his  possession  or  un- 
der his  control,  as  provided  in  the  preceding  section 
[1837],  fail  or  refuse  to  deliver  them  to  the  justice  on 
such  demand  the  garnishee  shall,  on  motion  of  the  plain- 
tiff, be  cited  to  show  cause  why  he  should  not  be  at- 
tached for  contempt  of  court  for  such  failure  or  refusal, 
and  should  the  garnishee  fail  to  show  some  good  and 
sufficient  excuse  for  such  failure  and  refusal  he  shall  be 
fined  for  such  contempt  and  imprisoned  until  he  shall 
deliver  such  personal  property  or  effects.  [1838.] 

§  263.     COSTS  ALLOWED   GARNISHEE    ON   CONTRO- 
VERTED ANSWER. 

An  attorney's  fee  and  costs  are  allowed  the  garnishee 
when  the  answer  is  controverted  and  he  is  discharged. 

Where  the  answer  is  controverted  and  the  garnishee 
is  subsequently  discharged  upon  the  trial  thereof,  his 
costs,  including  a  reasonable  attorney's  fee  to  be  fixed 
by  the  court  shall  be  taxed  against  the  plaintiff;  and  if 
the  garnishee  upon  his  answer  being  controverted  by 
the  plaintiff  is  held  liable  to  an  extent  greater  than  the 
liability  admitted  in  his  answer,  the  costs  of  the  plain- 
tiff upon  such  proceeding  including  a  reasonable  attor- 
ney's fee  to  be  fixed  by  the  court,  shall  be  taxed  against 
the  garnishee.  [1843.] 


GARNISHMENT.  143 

§  264.     GARNISHMENT  OF   CORPORATION. 

When  a  corporation  is  garnished  and  the  defendant  is  the 
owner  of  shares  of  stock  therein,  the  court  may  order  the 
same  sold  under  execution;  which  sale  shall  convey  all  the 
right,  title  and  interest  of  the  defendant  in  and  to  said 
stock  to  the  purchaser  at  such  sale. 

Where  the  garnishee  is  a  corporation  and  it  appears 
by  the  answer  or  otherwise  that  the  defendant  was, 
when  the  writ  of  garnishment  was  served  upon  it,  the 
owner  of  any  shares  of  stock  in  such  corporation,  the 
court  shall  render  a  decree  ordering  the  sale  under  exe- 
cution in  favor  of  the  plaintiff  against  the  defendant  of 
such  shares  of  the  defendant  in  such  corporation,  or  so 
much  thereof  as  may  be  necessary  to  satisfy  such  execu- 
tion. [1839.] 

§  265.    CONDUCT  OF  SALE. 

The  sale  so  ordered  shall  be  conducted  in  all  respects 
as  other  sales  of  personal  property  under  execution,  and 
the  officer  makirg  such  sale  shall  execute  a  transfer  of 
such  shares  to  the  purchaser  with  a  brief  recital  of  the 
judgment  of  the  court  under  which  the  same  was  sold. 
[1840.] 

§  266.    SALE  CONVEYS  TITLE. 

Such  sale  shall  be  valid  and  effectual  to  pass  to  the 
purchaser  all  the  right,  title  and  interest  which  the  de- 
fendant had  in  such  shares  of  stock,  and  the  proper  of- 
ficers of  such  company  shall  enter  such  sale  and  transfer 
on  the  books  of  the  company  in  the  same  manner  as  if 
the  sale  had  been  made  by  the  defendant  himself. 
[1841.] 


144  JUSTICE  OF  THE  PEACE  GUIDE. 


'CHAPTER  XVI. 

NE  EXEAT. 

§  267.  General  authority. 

§  268.  Bond. 

§  269.  Venue. 

§  270.  Defendant  discharged  on  recognizance. 

§  271.  Writ  for  any  surety. 

§  272.  Proceedings  before  justice. 

§  273.  Remedy  by  writ  of  habeas  corpus. 

This  is  a  process  of  arrest  and  bail  arising  upon  the  threat- 
ened breach  of  a  contract  and  consequent  loss  of  property, 
credits  and  moneys.  It  is  a  writ  issued  by  the  justice  of  the 
peace  upon  the  affidavit  and  bond  of  the  complainant,  and 
requires  the  body  of  the  defendant  to  be  arrested,  in  order 
that  the  defendant  may  be  required  to  enter  into  a  bond 
that  he  will  personally  appear  at  the  time  of  trial.  The 
complaint  in  the  action  is  filed  with  the  affidavit  for  the 
order  of  arrest  and  bail. 

§  267.    GENERAL  AUTHORITY. 

Action  may  be  commenced  upon  any  agreement  in 
writing  before  the  time  for  the  performance  of  the  con- 
tract expires,  when  the  plaintiff  or  his  agent  shall  make 
and  file  an  affidavit  with  the  proper  justice  that  the  de- 
fendant is  about  to  leave  the  state  without  performing 
or  making  provisions  for  the  performance  of  the  con- 
tract, taking  with  him  property,  moneys,  credits  or 
effects  subject  to  execution  with  intent  to  defraud  plain- 
tiff. [778.] 

The  plaintiff  must  give  bond  before  the  order  of  arrest 
Issues  that  he  will  pay  the  defendant  such  damages  and 
costs  as  he  shall  wrongfully  sustain  by  reason  of  the  action. 

§  268.    BOND. 

At  the  time  of  filing  the  affidavit  the  plaintiff  shall 
also  file  his  complaint  in  the  action,  and  thenceforth  the 
action  shall  proceed  as  other  actions  at  law,  except  as 
otherwise  provided  in  this  chapter.  Upon  such  affidavit 


NE  EXEAT.  145 

and  complaint  being  filed,  the  justice  shall  issue  an  order 
of  arrest  and  bail,  directed  to  the  sheriff,  or  any  con- 
stable of  the  county,  which  shall  be  issued,  served  and 
returned  in  all  respects  as  such  orders  in  other  cases; 
before  such  order  shall  issue,  the  plaintiff  shall  file  in 
the  office  of  the  justice  a  bond,  with  sufficient  surety  to 
be  approved  by  the  justice,  conditioned  that  the  plain- 
tiff will  pay  the  defendant  such  damages  and  costs  as  he 
shall  wrongfully  sustain  by  reason  of  the  action,  which 
sureties  shall  justify  as  bail  upon  an  arrest.  [779.] 

§  269.    VENUE. 
The  county  where  defendants  are  found  may  be  the  venue. 

The  affidavit  and  bond  may  be  filed  and  proceedings 
had  in  any  county  where  the  defendants  may  be  found. 
[784.] 

§  2?0.    DEFENDANT     DISCHARGED     ON     RECOGNI- 
ZANCE. 

The  sheriff  shall  require  the  defendant  to  enter  into 
a  bond,  with  sufficient  surety,  personally  to  appear 
within  the  time  allowed  by  law  for  answering  the  com- 
plaint, and  to  abide  the  order  of  the  court;  and  in  de- 
fault thereof  the  defendant  shall  be  committed  to  prison 
until  discharged  in  due  course  of  law;  such  special  bail 
shall  be  liable  for  the  principal,  and  shall  have  a  right 
to  arrest  and  deliver  him  up,  as  in  other  cases,  and  the 
defendant  may  give  other  bail.  Instead  of  giving  spe- 
cial bail  as  above  provided,  the  defendant  shall  be  en- 
titled to  his  discharge  from  custody,  if  he  will  secure 
the  performance  of  the  contract  to  the  satisfaction  of 
the  plaintiff.  [780.] 

§  271.    WRIT  FOR  ANY  SURETY. 

This  proceeding  may  be  had  in  favor  of  any  surety  or 
other  person  jointly  bound  with  defendant.  It  may  also 
be  prosecuted  by  the  person  in  whose  favor  the  contract 
exists  against  any  one  or  more  of  the  persons  bound 
thereby,  upon  filing  such  affidavit,  when  the  co-con- 
tractors are  nonresidents  or  probably  insolvent,  or  at  the 
request  of  any  of  them  where  they  are  residents  and 
solvent.  [781.] 
10 


146  JUSTICE  OF  THE  PEACE  GUIDE. 

§  272.    PROCEEDINGS  BEFORE  JUSTICE. 

The  proceedings  provided  for  in  this  chapter  may  be 
had  before  justices  of  the  peace  in  all  cases  within  their 
jurisdiction.  [783.] 

§  273.    REMEDY  BY  WRIT  OF  HABEAS  CORPUS. 

The  defendant  may  have  the  same  remedy  by  writ  oi 
habeas  corpus  as  in  other  cases  of  arrest  and  bail. 
[782.] 


CRIMINAL  JURISDICTION  OF  JUSTICE 
OF  THE  PEACE 

CHAPTER  XVII. 
PROCEDURE. 

§  274.  Warrant  issued  on  complaint. 

§  275.  Jurisdiction  of  criminal  offenses. 

§  276.  Bail  with  or  without  examination. 

S  277.  Hearing  and  commitment. 

§  278.  Offense  in  presence  of  justice. 

§  279.  Plea  of  guilty  to  any  offense. 

§  280.  Necessity  of  hearing. 

§  281.  Trial  by  jury  and  magistrate. 

§  282.  Punishment — Adequate  and  inadcquatfl. 

§  283.  Injured  party  as  witness. 

S  284.  Continuance. 

§  285.  Recognizance  of  witnesses. 

§  286.  Sureties  required  of  witnesses,  when. 

S  287.  Recognizance  for  witnesses  not  sui  juris. 

f  288.  Judgment  includes  fine  and  costs. 

§  289.  Bond  for  stay  of  execution. 

§  290.  Right  of  appeal  to  superior  court. 

S  291.  Recognizance  for  witnesses  on  appeal. 

§  292.  Defendant  not  to  advance  fees  of  appeal. 

§  293.  Examination  upon  complaint. 

§  294.  Trial  when  justice  has  jurisdiction  of  offensa 

§  295.  Bail  when  justice  has  not  jurisdiction. 

§  296.  Recognizance  of  witnesses. 

S  297.  Deposition  to  be  written  and  signed. 

S  298.  Record  to  be  transcribed  to  superior  court. 

§  299.  Suit  against  witness  on  the  bond. 

S  300.  Costs  to  be  forwarded. 

§  301.  Complainant  pays  costs  for  malicious  complaint. 

{  302.  Compound  of  misdemeanors. 

The  justice  of  the  peace  exercises  criminal  jurisdiction 
as  a  committing  magistrate,  that  is,  to  hold  the  offender  over 
to  trial  in  the  superior  court,  and  also  as  magistrate  with 
authority  to  convict  and  punish  within  certain  prescribed 

(147) 


148  JUSTICE  OF  THE  PEACE  GUIDE. 

limits.  The  punitive  authority  of  the  justice  of  the  peace 
in  his  criminal  practice  is  limited  to  fining  the  offender 
one  hundred  dollars,  and  he  may  inflict  a  prison  sentence 
to  the  extent  of  thirty-three  days. 

Unless  the  crime  or  offense  be  committed  in  the  presence 
of  some  officer  of  the  law,  or  some  person  who  shall  im- 
mediately apprehend  the  offender,  warrants  for  the  ar- 
rest of  the  person  are  issued  generally  upon  the  sworn 
complaint  of  some  third  person. 

§  274.    WARRANT  ISSUED  ON  COMPLAINT. 

Any  justice  shall,  on  complaint  on  oath  in  writing  be- 
fore him,  charging  any  person  with  the  commission  of 
any  crime  or  misdemeanor,  of  which  he  has  jurisdiction, 
issue  a  warrant  for  the  arrest  of  such  person,  and  cause 
him  to  be  brought  forthwith  before  him  for  trial. 
[1925.] 

STATUTORY  FORMS. 
£In  Criminal  Proceedings.] 

The  following  or  equivalent  forms  may  be  used  by  jus- 
tices of  the  peace  in  criminal  proceedings : 

WARRANT. 

The  State  of  Washington, 
County, — ss. 

To  the  Sheriff  or  Any  Constable  of  Said  County: 

Whereas,  A  B  has  this  day  complained  in  writing  un- 
der oath  to  the  undersigned,  one  of  the  justices  of  the 

peace  in  and  for  said  county,  that  on  the day  of 

,  19 ,  at ,  in  said  county  [here  in- 
sert the  substance  of  the  complaint  whatever  it  may 
be] ;  therefore,  in  the  name  of  the  state  of  Washington, 
you  are  commanded  forthwith  to  apprehend  the  said  C 
D  and  bring  him  before  me,  to  be  dealt  with  according 
to  law. 

Given  under  my  hand  this day  of ,19 

JP, 
Justice  of  the  Peace. 


PROCEDURE.  149 

In  Justice's  Court. 

Before  Fred  C.  Brown,  Justice  of  the  Peace  in  and  for 
Seattle  Precinct,  King  County,  State  of  Washing- 
ton. 

No 

The  State  of  Washington, 
Plaintiff, 
v. 


Defendant, 

BENCH  WARRANT. 

State  of  Washington, 
County  of  King, — ss. 

The  State  of  Washington  to  the  Sheriff  or  Any  Con- 
stable of  Said  County,  Greeting: 

Whereas,  a  bench  warrant  has  this  day  been  ordered 
by  the  court  to  issue  for : 

Therefore,  in  the  name  of  the  state  of  Washington 
you  are  commanded  forthwith  to  apprehend  the  said 

and  bring  him  or  her  before  this  court  to  be 

dealt  with  according  to  law. 

Given  under  my  hand  this  day  of  , 

19.. 


Justice  of  the  Peace,  in  and  for  Seattle  Precinct,  King 
County,  Wash. 

No In  Justice's  Court.    Before  Fred  C.  Brown, 

Justice  of  the  Peace,  Seattle  Precinct,  King  County, 
State  of  Washington.  The  State  of  Washington,  Plain- 
tiff, v ,  Defendant.  Bench  Warrant.  Filed 

,19 ,  Justice  of  the  Peace,  Seattle 

Precinct,  King  County,  Washington. 

§  275.    JURISDICTION  OF  CRIMINAL  OFFENSES. 

It  should  be  noted  that  the  jurisdiction  of  criminal  matters, 
like  that  of  civil  matters,  is  coextensive  with  the  limits  of 
the  respective  counties. 

The  warrant  having  been  issued,  the  defendant  may  be 
pursued  thereon  in  any  part  of  the  state. 


150  JUSTICE  OP  THE  PEACE  GUIDE. 

If  any  person  against  whom  a  warrant  may  be  issued 
for  an  alleged  offense,  committed  in  any  county,  shall 
either  before  or  after  the  issuing  of  such  warrant,  escape 
from,  or  be  out  of  the  county,  the  sheriff  or  other  officer 
to  whom  such  warrant  may  be  directed,  may  pursue  and 
apprehend  the  party  charged,  in  any  county  in  this 
state,  and  for  that  purpose  may  command,  aid,  and  exer- 
cise the  same  authority  as  in  his  own  county.  [1950.] 

The  justice  may  allow  the  arrested  person  to  enter  his 
recognizance  for  his  appearance  in  the  superior  court  having 
jurisdiction  of  the  offense. 

§  276.    BAIL  WITH  OR  WITHOUT  EXAMINATION. 

The  magistrate  before  whom  such  accused  person 
ehall  be  brought,  when  the  offense  is  bailable,  may,  at 
the  request  of  such  person,  with  or  without  examination, 
allow  Mm  to  enter  into  recognizance  with  sufficient  sure- 
ties, to  be  approved  by  the  magistrate,  conditioned  for 
his  appearance  in  the  superior  court  having  jurisdiction 
of  the  offense.  £1951.} 

FORM. 
In  Justice's  Court. 

Before  John  E.  Carroll,  Justice  of  the  Peace,  in  and  for 
Seattle  Precinct,  King  County,  State  of  Washing- 
ton. 

No 

The  State  of  Washington, 
Plaintiff, 
v. 


Defendant. 

RECOGNIZANCE— BAIL  BOND. 

State  of  Washington, 
County  of  King, — ss. 

Whereas,  upon  an  examination  before  John  E.  Carroll, 
a  justice  of  the  peace  in  and  for  said  King  County,  of 

the  complaint  of ,  charging with  the 

crime  of  ,  it  did  appear  to  said  justice  that 

there  is  probable  cause  to  believe  that  said did 


PROCEDURE.  151 

commit  said  crime;  and  whereas,  said  justice  of  the 
peace  has  ordered  said to  enter  into  recogni- 
zance, with  sufficient  sureties,  for appearance 

in  the  superior  court  of  said  county  of  King  to  answer 
said  charge. 

Now,   therefore,  we    ,   as  principal,   and 

and  ,  as  sureties,  acknowledge  our- 
selves, and  our  and  each  of  our  heirs,  executors  and  ad- 
ministrators, jointly  and  severally  bound  unto  the  state 

of  Washington,  in  the  full  sum  of dollars,  to  be 

paid  to  the  state  of  Washington. 

On  condition,  however,  that  if  the  said shall 

appear  in  said  superior  court  of  King  County  to  answer 
said  charge  whenever  the  same  shall  be  prosecuted,  and 
at  all  times,  until  discharged  according  to  law,  render 

amenable  to  the  orders  and  process  of  said 

superior  court,  and,  if  convicted,  render in  exe- 
cution of  the  judgment  of  said  court,  then  this  obliga- 
tion shall  become  void,  otherwise  it  shall  remain  in  full 
force  and  virtue. 

Signed  and  sealed  this day  of ,  A.  D. 

19 

[Seal] 

[Seal] 

[Seal] 

State  of  Washington, 
County  of  King, — ss. 

and ,  each  being  duly  sworn,  each 

for  himself  on  oath  says :  I  am  a  resident  of  said  county 
of  King;  I  am  not  a  counselor  or  attorney  at  law,  clerk 
of  the  superior  court,  or  other  officer  of  such  court* 

and  am  worth  the  sum  of dollars,  over  and  above 

all  debts  and  liabilities,  and  exclusive  of  property  exempt 
from  execution. 


Subscribed  and  sworn  to  before  me  this day  of 

,  A.  D.  19.... 


Justice  of  the  Peace,  Seattle  Precinct,  King  County, 
State  cf  Washington. 

No In  Justice's  Court.    Before  John  E.  Carroll, 

Justice  of  the  Peace,  Seattle  Precinct,  King  County,  State 
of  Washington.  State  of  Washington,  PJaintiff,  v. 
.Defendant.  Recognizance — Bail  Bond.  Filed 


152  JUSTICE  OF  THE  PEACE  GUIDE. 

and  approved  this day  of ,19 

Justice  of  the  Peace ,  Attorney  for , 

Building,  Seattle,  Wash. 

But  if  the  defendant  does  not  enter  into  recognizance, 
the  magistrate  shall  proceed  to  hear  and  examine  the  com- 
plaint. 

§  277.    HEARING  AND  COMMITMENT. 

If  the  defendant  shall  not  enter  into  recognizance 
with  sureties  the  magistrate  shall  proceed  to  hear  and 
examine  the  complaint,  and  may  adjourn  the  examina- 
tion from  time  to  time,  not  exceeding  in  all  ten  days 
from  the  time  such  defendant  shall  have  been  brought 
before  him,  and  in  case  of  such  adjournment,  the  magis- 
trate may,  if  the  offense  be  bailable,  take  a  recognizance 
with  sufficient  sureties  for  the  appearance  of  the  defend- 
ant at  such  further  examination ;  and  if  he  fail  to  enter 
into  such  recognizance,  he  shall  be  ordered  into  custody 
until  the  time  appointed  for  such  examination.  [1952.] 

FORMS. 
COMMITMENT. 

The  State  of  Washington, 
County  of , — ss. 

To  Any  Constable  and  the  Keeper  of  the  County  Jail  of 
Said  County: 

Whereas,  at  a  justice's  court  held  at  my  office  in 
said  county  for  the  trial  of  C  D  for  the  offense  herein- 
after stated,  the  said  C  D  was  convicted  of  having  on 
the day  of ,  19. . . .,  in  said  county,  com- 
mitted the  crime  [here  state  the  offense],  and  upon 
conviction  the  said  court  did  adjudge  and  determine 
that  the  said  C  D  should  be  imprisoned  in  the  county 

jail  of  said  county  for days,  therefore  you,  the 

said  constable,  are  commanded  in  the  name  of  the 
state  of  Washington  forthwith  to  convey  and  deliver 
the  said  C  D  to  the  said  keeper;  and  you,  the  said 
keeper,  are  hereby  commanded  to  receive  the  said  C  D 
into  your  custody  in  said  jail,  and  him  there  safely 

keep  until  the  expiration  of  said days,  or  until 

he  shall  thence  be  discharged  by  due  course  of  law. 

Dated  this   day  of  ,  19 

JP, 

Justice  of  the  Peace. 


PROCEDURE.  153 


In  the  Justice's  Court. 

Before ,  Justice  of  the  Peace  in  and  for  Seattle 

Precinct,  King  County,  State  of  Washington. 

State  of  Washington,' 
Plaintiff, 
v. 


Defendant..^ 

State  of  Washington, 
County  of  King,  —  ss. 

The  State  of  Washington,  to  the  Sheriff  of  King  County, 
Washington,  or  to  Any  Constable  of  Said  County: 

Whereas,    the    above-named  defendant..,   arrested 
and  brought  before  me  charged  with  the   crime  of 
........  ,  having  failed  and  refused  to  give  and  furnish 

the  required  bail  in  the  sum  of  $  ......  for  appearance 

before  me  on  the  ____  day  of  ........  ,  19  .  .  .  .,  at  ____ 

o'clock  ____  M.,  that  being  the  time  set  by  me  for  a 

hearing  on  said  charge: 

Now,  therefore,  this  is  to  command  and  direct  that 
said    ........  ,  defendant.  .  aforesaid,   shall  forthwith 

be  delivered  and  surrendered  into  the  care  and  custody 
of  said  sheriff  of  King  County,  to  be  by  him  received 
and  safely  kept  and  confined  in  the  jail  of  said  county, 
and  on  the  date  and  at  the  time  above  specified  for 
the  hearing  on  said  charge,  or  at  such  other  dates 
and  times  as  this  court  may  direct,  said  sheriff  shall 
have,  bring  and  return  said  defendant.  .  into  this  court 
for  such  hearing,  and  at  all  times  retain  the  full  custody 
and  control  of  said  defendant.  .  until  discharged  or 
released  by  due  course  of  law. 

Given  under  my  hand  this  ....  day  of  ........  ,  A.  D. 

19  ..... 


Justice  of  the  Peace. 

RETURN. 

Received  this  commitment  with  the  within  named 
prisoner,  on  the  ____  day  of  ........  ,  A.  D.  19  ____  ,  and 

on  the  same  day,  I  committed  said  prisoner  to  the  custody 
of  the  jail-keeper  named  in  said  commitment,  with  whom 


154  JUSTICE  OF  THE  PEACE  GUIDE. 

I  left  at  the  same  time  a  certified  copy  of  this  commit* 
merit. 
Dated day  of . .,  A.  D.  19 


Sheriff  of  King  County. 

By , 

Deputy. 

In  the  Justice  Court,  Seattle  Precinct,  King  County. 
Temporary  Commitment.  State  of  Washington,  Plain- 
tiff, v ,  Defendant.  Preliminary  Hearing. 

Filed ,  A.  D.  19 Justice  of  the 

Peace. 

The  justice  may  by  verbal  direction  cause  the  arrest  of 
any  offender  committing  an  offense  in  view  of  the  justice. 
The  most  common  form  of  this  is  contempt  in  the  justice's 
own  court. 

§  278.    OFFENSE  IN  PRESENCE  OF  JUSTICE. 

When  any  offense  is  committed  in  view  of  any  justice 
he  may,  by  verbal  direction  to  any  constable,  or  if  no 
constable  be  present,  to  any  citizen,  cause  such  constable 
or  citizen  to  arrest  such  offender,  and  keep  him  in  cus- 
tody for  the  space  of  one  hour,  unless  such  offender 
shall  sooner  be  taken  from  custody  by  virtue  of  a 
warrant  issued  on  complaint  on  oath.  But  such  per- 
son so  arrested,  shall  not  be  confined  in  jail,  nor  put 
upon  any  trial,  until  arrested  by  virtue  of  such  war- 
rant. And  on  the  return  of  any  warrant  issued  by 
him,  it  shall  be  the  duty  of  the  justice  to  docket  the 
cause,  and,  unless  continuance  be  granted,  forthwith  to 
hear  and  determine  the  cause,  and  either  acquit,  con- 
vict and  punish  or  hold  to  bail  the  offender,  if  the  of- 
fense be  bailable  and  prove  to  be  one  which  should  be 
tried  in  the  superior  court,  or  in  default  of  bail,  as 
the  facts  and  law  may  justify.  [1926.] 

The  accused  may  plead  guilty  to  any  offense  charged. 

§  279.    PLEA  OF  GUILTY  TO  ANY  OFFENSE. 

The  defendant  may  plead  guilty  to  any  offense 
charged.  [1929.] 


PROCEDURE.  155 

§  280.    NECESSITY  OF  HEARING. 

No  justice  shall  assess  a  fine,  or  enter  a  judgment 
thereon  until  a  witness  or  witnesses  have  been  examined 
to  state  the  circumstances  of  the  transaction.  [1931.] 

• 

CERTIFICATE  OF  CONVICTION. 

The  State  of  Washington, 
County  of , — ss. 

At  a  justice's  court  held  at  my  office  in  said  county 
before  me,  one  of  the  justices  of  the  peace  in  and  for 
said  county,  for  the  trial  of  C  D  for  the  offense  herein- 
after stated,  the  said  C  D  was  convicted  on  the 

day  of   ,19 ,   in  said  county,   committed 

[here  insert  the  offense]  and  upon  conviction  the  said 
court  did  adjudge  and  determine  that  the  said  C  D 

should  pay  a  fine  of dollars,  [or  be  imprisoned 

-  as  the  case  may  be]  and  the  said  fine  has  been  paid 
to  me. 

Given  under  my  hand  this day   of , 

19 

JP, 

Justice  of  the  Peace. 

Trial  by  six  or  a  less  number  of  jurors  may  be  agreed  upon 
by  the  state  and  the  accused. 

§  281.    TRIAL  BY  JURY  AND  MAGISTRATE. 

In  all  trials  for  offenses  within  the  jurisdiction  of  a 
justice  of  the  peace,  the  defendant  or  the  state  may 
demand  a  jury,  which  shall  consist  of  six,  or  a  less 
number,  agreed  by  the  state  and  accused,  to  be  impan- 
eled and  sworn  as  in  civil  cases;  or  the  trial  may  be 
by  the  justice.  When  the  complaint  is  for  a  crime  or 
misdemeanor  in  the  exclusive  jurisdiction  of  the  su- 
perior court,  the  justice  hears  the  case  as  a  committing 
magistrate,  and  no  jury  shall  be  allowed.  [1927.] 

§  282.  PUNISHMENT— ADEQUATE  AND  INADEQUATE. 
Such  justice  or  jury,  if  they  find  the  prisoner  guilty, 
shall  assess  his  punishment;  or,  if,  in  their  opinion, 
the  punishment  they  are  authorized  to  assess  is  not 
adequate  to  the  offense,  they  may  so  find,  and  in  such 
case  the  justice  shall  order  such  defendant  to  enter 
recognizance  to  appear  in  the  superior  court  of  the 


156  JUSTICE  OF  THE  PEACE  GUIDE. 

county,  and  shall  also  recognize  the  witnesses,  and 
proceed  as  in  proceedings  by  a  committing  magistrate. 
[1928.]. 

When  a  particular  person  has  been  injured  by  the  of- 
fense of  the  defendant,  the  injured  person  is  to  be  sum- 
moned as  a  witness  in  the  cause. 

§  283.    INJURED  PARTY  AS  WITNESS. 

In  all  cases  arising  under  this  chapter,  if  the  offense 
charged  involve  injury  to  a  particular  person  who  is 
within  the  county,  it  shall  be  the  duty  of  the  justice  of 
the  peace  to  summon  the  injured  person,  and  all  others 
whose  testimony  may  be  deemed  material,  as  witnesses 
at  the  trial,  and  to  enforce  their  attendance,  by  attach- 
ment, if  necessary.  [1930.] 

Continuances  may  be  granted  in  criminal  cases  on  the 
same  rules  as  in  civil  actions. 

§  284.     CONTINUANCE. 

Continuance  may  be  granted,  either  on  application  of 
the  defendant  or  the  prosecuting  witness,  under  the 
same  rules  as  in  civil  cases;  the  cost  of  such  continu- 
ance shall  abide  the  event  of  the  prosecution  in  all 
cases,  and  the  justice  shall  recognize  the  defendant  and 
the  witnesses  to  appear  from  time  to  time,  in  the  same 
manner  as  is  provided  in  other  criminal  examinations 
before  him.  [1932.] 

The  witnesses  where  the  defendant  is  held  or  committed 
are  recognized  to  appear  in  the  superior  court  against  the 
defendant. 

§  285.    RECOGNIZANCE  OF  WITNESSES. 

Where  the  person  arrested  is  held  to  bail,  or  com- 
mitted  to  jail  or  forfeits  his  recognizance,  the  magis- 
trate shall  recognize  the  witnesses  for  the  prosecution 
to  be  and  appear  in  the  superior  court  to  which  the 
party  is  recognized,  bailed,  or  committed,  whenever 
their  attendance  shall  be  required.  [1959.] 


PEOCEDURB.  157 

FORM. 

In  the  Justice's  Court. 

Before  John  E.  Carroll,  Justice  of  the  Peace  in  and  for 
Seattle  Precinct,  King  County,  State  of  Washing, 
ton. 

No 

The  State  of  Washington,^ 

Plaintiff, 
v. 


Defendant. 

WITNESS— COMMITMENT. 

State  of  Washington, 
County  of  King, — ss. 

To  Any  Constable  and  the  Keeper  of  the  Jail  of  Said 
County,  Greeting: 

Whereas,  at  a  justice  court,  held  at  my  office  in  said 
county  for  the  trial  of  for  the  offense  here- 
inafter stated,  the  said was  convicted  of  hav- 
ing on  the day  of ,19 ,  in  said  county, 

committed  the  crime  of ,  and  it  appearing  to 

the  court  that  ,  prosecuting  witness,  and 

and are  necessary  witnesses  for  the 

state,  and  it  further  appearing  that  said  , 

prosecuting  witness,  and  and  ,  wit- 
nesses, are  unable  to  give  bonds  for  their  appearance 
at  the  trial. 

Therefore,  you,  the  said  constable,  are  commanded, 
in  the  name  of  the  people  of  the  state  of  Washington, 

forthwith  to  convey  and  deliver  the  said  to 

the  said  keeper,  and  you,  the  said  keeper,  are  hereby 
commanded  to  receive  the  said into  your  cus- 
tody in  the  said  jail,  and  there  safely  keep  until  the 
trial  of 

Dated  this day  of ,  A.  D.  19 


Justice  of  the  Peace,  Seattle  Precinct,  King  County, 
State  of  Washington. 


158  JUSTICE  OF  THE  PEACE  GUIDE. 

State  of  Washington, 
County  of  King, — ss. 

I  hereby  certify,  that  I  served  the  within  commitment 

by  delivering  the  within  named to  the  custody 

of  the  keeper  of  the  jail  of this day  of 

.  19.. 


Constable,  Seattle  Precinct,  King  County,  Washington. 

No In  Justice's  Court.   Before  John  E.  Carroll, 

Justice  of  the  Peace,  Seattle  Precinct,  King  County, 
State  of  Washington.  The  State  of  Washington,  Plain- 
tiff, v ,  Defendant.  Commitment — Witness. 

, Witnesses.    Filed 19 

,  Justice  of  the  Peace,  Seattle  Precinct,  King 

County,  Wash.  « 

The  court  may  compel  the  witnesses  to  give  sureties  for 
their  appearance  in  the  superior  court. 

§  286.  SURETIES  REQUIRED  OF  WITNESSES,  WHEN. 
If  the  magistrate  shall  be  satisfied  that  there  is  good 
cause  to  believe  that  any  such  witness  will  not  perform 
the  condition  of  his  recognizance  unless  other  security 
be  given,  such  magistrate  may  order  the  witness  to 
enter  into  recognizance  with  such  sureties  as  may  be 
deemed  necessary  for  his  appearance  at  court.  [I960.] 

FORM. 

In  Justice's  Court.. 

Before  John  E.  Carroll,  Justice  of  the  Peace  in  and  for 
Seattle  Precinct,  King  County,  State  of  Washing- 
ton. 

No 

State  of  Washington," 
Plaintiff, 
v. 


Defendant.^ 

WITNESS'  RECOGNIZANCE. 

And  now,  on  the day  of ,  A.  D.  19. . . ., 

comes as  principal,  and and 

as  sureties,  and  acknowledge  and  recognize  themselves, 


PROCEDURE.  159 

their  heirs,  executors  and  administrators,  jointly  and 
severally  bound  unto  the  state  of  Washington,  in  the 

just  and  full  sum  of  dollars,  lawful  money  of 

the  United  States.  The  condition  of  this  recognizance 
is  such  that,  whereas  the  said  defendant  has  been  held 
by  John  E.  Carroll,  a  justice  of  the  peace  in  and  for 
Seattle  precinct,  county  of  King,  state  of  Washington, 
to  answer  before  the  superior  court  of  King  County, 
state  of  Washington,  at  such  time  as  ordered  by  the 
said  superior  court. 

Now,  therefore,  if  the  said shall  appear  and 

attend  to  testify  as  a  witness,  before  said  court,  when- 
ever   attendance  shall  be  required  by  said  court, 

until  discharged  according  to  law,  then  this  recogni- 
zance shall  be  void,  and  otherwise  remain  in  full  force 
and  effect. 

In  testimony  whereof,  the  said  parties  have  hereunto 
set  their  hands  and  seals  the  day  and  year  first  above 
written. 

[Seal] 

[Seal] 

[Seal] 

State  of  Washington, 
County  of  King, — ss. 

and ,  being  duly  sworn  according 

to  law,  each  for  himself  says  that  he  is  not  a  sheriff, 
clerk  or  other  officer  of  the  superior  court;  that  he  is 

worth  the  sum  of dollars  ($ ),  over  and 

above  all  just  debts  and  liabilities,  and  exclusive  of 
property  exempt  from  execution. 


Subscribed  and  sworn  to  before  me  this day  of 

.  A.  D.  19. . 


Justice  of  the  Peace,  Seattle   Precinct,  King   County, 
Washington. 

No In  Justice 's  Court.    Before  John  E.  Carroll, 

Justice  of  the  Peace,  Seattle  Precinct,  King  County, 
State  of  Washington.  The  State  of  Washington,  Plain- 
tiff, v ,  Defendant.  Witness'  Recognizance. 

Witness :  The  within  recognizance  and  the 

sureties   thereon  hereby   approved.    Dated    , 


160  JUSTICE  OF  THE  PEACE  GUIDE. 

19 ,  Justice  of  the   Peace.    Filed  this 

day  of ,19 ,  Justice  of  the 

Peace. 

In  a  case  where  the  material  witness  is  a  married  woman 
or  a  minor  child,  some  other  proper  person  may  recognize  for 
the  appearance  of  such  witness. 

§  287.    RECOGNIZANCE    FOR   WITNESSES    NOT    SUI 
JURIS. 

When  any  married  woman  or  a  minor  is  a  material 
witness,  any  other  person  may  be  allowed  to  recognize 
for  the  appearance  of  such  witness,  or  the  magistrate 
may,  in  his  discretion,  take  the  recognisance  of  such 
married  woman  or  minor  in  a  sum  not  exceeding  fifty 
dollars,  which  shall  be  valid  and  binding  in  law,  not- 
withstanding the  disability  of  coverture  or  minority. 
[1961.] 

The  defendant  after  trial  may  be,  if  convicted,  confined 
at  hard  labor  until  he  shall  have  satisfied  the  judgment  for 
the  fine  and  costs. 

§  288.    JUDGMENT  INCLUDES  FINE  AND  COSTS. 

In  all  cases  of  conviction,  unless  otherwise  provided 
in  this  chapter,  the  justice  shall  enter  judgment  for 
the  fine  and  costs  against  the  defendant,  and  may  com- 
mit him  to  jail,  to  be  placed  at  hard  labor  until  the 
judgment  is  satisfied,  or  the  payment  thereof  be  se- 
cured, as  provided  by  section  fourteen  hundred  and 
ninety-seven  and  further  proceedings  therein  shall  be 
had  as  in  like  cases  in  the  superior  court;  but  the 
defendant  shall  not  be  imprisoned  for  a  longer  aggre- 
gate time  than  one  day  for  every  three  dollars  of  the 
fine  and  costs;  and  a  defendant  who  has  been  com- 
mitted shall  be  discharged  at  any  time  upon  payment 
of  such  part  of  the  fine  and  costs  as  remain  unpaid, 
after  deducting  from  the  whole  amount  any  previous 
payment  and  three  dollars  for  every  day  he  has  been 
imprisoned  upon  the  commitment.  [1933.] 


PROCEDURE.  161 

FORM. 
EXECUTION. 

The  State  of  Washington, 
County  of , — ss. 

To  the  Sheriff  or  Any  Constable  of  Said  County: 

Whereas,  at  a  justice's  court  held  at  my  office  in  said 
county  for  the  trial  of  C  D  for  the  offense  hereinafter 
stated,  the  said  C  D  was  convicted  of  having  on  the 

....  day  of ,  19 ,  in  said  county,  committed 

[here  state  the  offense],  and  upon  conviction  the  said 
court  did  adjudge  and  determine  that  the  said  C  D 

should  pay  a  fine  of dollars,  and dollars 

costs;  and,  whereas,  the  said  fine  and  costs  have  not 
been  paid,  these  are,  therefore,  in  the  name  of  the 
state  of  Washington,  to  command  you  to  levy  on  the 
goods  and  chattels,  etc.  [as  in  execution  in  civil  cases]. 

Execution  of  fine  and  costs  may  be  stayed  for  thirty  days 
by   filing   approved   sureties. 

§  289.    BOND  FOR  STAY  OF  EXECUTION. 

Every  defendant  may  stay  the  execution  for  the  fine 
and  costs  for  thirty  days,  by  procuring  sufficient  sure- 
ties, to  be  approved  by  the  justice,  to  enter  into  recog- 
nizance before  him  for  the  payment  of  the  fine  and 
ccsts;  the  entry  of  such  recognizance  shall  be  made  on 
the  docket  of  the  justice,  and  signed  by  the  sureties, 
and  shall  have  the  same  effect  as  a  judgment,  and  if 
the  same  be  not  paid  in  thirty  days,  the  justice  shall 
proceed  as  in  like  cases  in  the  superior  court.  [1934.] 

§  290.    RIGHT  OF  APPEAL  TO  SUPERIOR  COURT. 

As  a  defendant  who  considers  himself  aggrieved  by  the 
judgment  of  the  superior  court  may  cry  to  the  supreme 
court,  so  the  defendant,  judged  upon  a  crime,  in  a  justice 
court,  has  the  right  of  appeal  to  the  superior  court  of  the 
county.  The  time  of  appeal  is  limited  to  ten  days ;  the  man- 
ner of  making  the  appeal  may  be  by  orally  announcing  it  in 
court  or  by  serving  a  written  notice  on  the  justice.  Upon 
filing  the  inevitable  security  he  may  be  released  pending 
the  hearing  of  the  appeal  in  the  appellate  court.  The  wit- 
11 


1G2  JUSTICE  OF  THE  PEACE  GUIDE. 

nesses  are  likewise  bound  to  appear  in  the  superior  court.  It 
is  proper  that  the  appellant  in  a  criminal  action  should  not 
have  to  advance  the  fees,  for  if  he  had  to  advance  such 
fees  as  are  necessary,  the  poverty  stricken  defendant  would 
be  practically  deprived  of  his  right  of  appeal.  The  costs 
of  the  appeal,  though,  are  not  avoided,  for  if  the  judgment 
against  him  be  confirmed  by  the  appellate  court,  the  costs 
of  prosecution  are  also  taxed  against  him. 

Every  person  convicted  before  a  justice  of  the  peace 
of  any  offense  may  appeal  from  the  judgment,  within 
ten  days  thereafter,  to  the  superior  court.  The  appeal 
shall  be  taken  by  orally  giving  notice  thereof  at  the 
time  the  judgment  is  rendered,  or  by  serving  a  written 
notice  thereof  upon  the  justice  at  any  time  after  the 
judgment,  and  within  the  time  allowed  for  taking  the 
appeal ;  when  the  notice  is  given  orally,  the  justice  shall 
enter  the  same  in  his  docket.  The  appellant  shall  be 
committed  to  the  jail  of  the  county  until  he  shall  recog- 
nize or  give  bond  to  the  state,  in  such  reasonable  sum, 
with  such  sureties  as  said,  justice  may  require,  with 
condition  to  appear  at  the  court  appealed  to,  and  there 
prosecute  his  appeal,  and  to  abide  the  sentence  of  the 
court  thereon,  if  not  revised  by  a  higher  court.  [1919.] 

FORM. 
In  Justice's  Court. 

Before  John  E.  Carroll,  Justice  of  the  Peace,  in  and  for 
Seattle  Precinct,  King  County,  State  of  Washing- 
ton. 

No 

State  of  Washington/ 
Plaintiff, 
v. 


Defendants. 

APPEAL  BOND— CRIMINAL. 

State  of  Washington, 
County  of  King, — ss. 

Know  All  Men  by  These  Presents: 

That  we,    ,  as  principal,  and   ,  as 

sureties,  are  held  and  firmly  bound  unto  the  state  of 


PROCEDURB.  163 

Washington  in  the  penal  sum  of dollars,  for  the 

payment  of  which  sum,  well  and  truly  to  be  made,  we 
bind  ourselves  and  each  of  us,  our  heirs,  executors  and 
administrators,  jointly  and  severally  firmly  by  these 
presents. 

Signed  and  sealed  this day  of ,  A.  D. 

19 

The  condition  of  the  foregoing  obligation  is  such  that, 

whereas,  on  the day  of ,  A.  D.  19 ,  the 

above-bounden  principal  was  convicted  before  John  E. 
Carroll,  a  justice  of  the  peace,  in  and  for  said  county, 

of  the  offense  of ,  and  the  said  justice  of  the 

peace  did  adjudge  and  determine  that  the  said 

pay  a  fine  of dollars  and dollars  costs  of 

prosecution,  and  in  default  of  payment  thereof  be  com- 
mitted to  jail  until  said  fine  and  costs  shall  be  paid; 

and  whereas  the  said has  given  notice  of  ap- 

'peal  from  said  conviction  and  sentence,  to  the  superior 
court  of  said  county. 

Now,  therefore,  if  the  said shall  appear  at 

said  court  and  there  prosecute  his  appeal,  and  shall 
abide  the  sentence  of  the  court  thereon,  unless  revised 
by  a  higher  court,  and  shall  in  the  meantime  be  of  good 
behavior,  then  this  obligation  shall  become  void;  other- 
wise, it  shall  remain  in  full  force  and  effect. 


Principal. 
[Seal' 
Seal 
"Seal" 

;seai; 

Sureties. 


State  of  Washington, 
County  of  King, — ss. 

,  being  first  duly  sworn,  each  for  himself,  on 

oath  says:  I  am  a  resident  of  the  state  of  Washington; 
I  am  not  a  counselor  or  attorney  at  law,  sheriff,  clerk  of 
the  superior  court,  or  other  officer  of  such  court,  and  am 

worth  the  said the  sum  of dollars,  the 

said  the  sum  of  dollars,  the  said 

the  sum  of dollars,  the  said 

the  sum  of dollars,  over  and  above  all  debts  and 


164:  JUSTICE  OF  THE  PEACE  GUIDE. 

liabilities,  and  exclusive  of  property  exempt  from  execu- 
tion. 


Subscribed  and  sworn  to  before  me  this day  of 

,  A.  D.  19. . 


Justice  of  the  Peace,  Seattle  Precinct,  King  County,  State 
of  Washington. 

No In  Justice's  Court.    Before  John  E.  Car- 

roll,  Justice  of  the  Peace,  Seattle  Precinct,  King  County, 
State  of  Washington.  The  State  of  Washington,  Plain- 
tiff, v ,  Defendant.  Appeal  Bond  (Criminal 

Action).  Filed  and  approved  this  ....  day  of , 

19 ,  Justice  of  the  Peace ,  At- 
torney. .  for  Defendant. 

§  291.  RECOGNIZANCE  FOR  WITNESSES  ON  APPEAL. 
Upon  an  appeal  being  taken  in  a  criminal  action  the 
justice  shall  require  the  witnesses  to  give  recognizances 
for  their  appearance  in  the  superior  court,  or,  if  they 
are  not  present,  indorse  their  names  on  the  copy  of  pro- 
ceedings. He  shall  on  such  appeal  make  and  certify  a 
copy  of  the  conviction  and  other  proceedings  in  the 
case,  and  transmit  the  same,  together  with  the  recogni- 
zance and  an  abstract  bill  of  the  costs,  to  the  clerk 
of  the  court  appealed  to,  who  shall  issue  a  subpoena 
for  the  witnesses  if  they  are  not  under  recognizance. 
£1921.] 

§  292.  DEFENDANT  NOT  TO  ADVANCE  FEES  OF  AP- 
PEAL. 

The  appellant  in  a  criminal  action  shall  not  be  re- 
quired to  advance  any  fees  in  claiming  his  appeal  nor 
in  prosecuting  the  same;  but  if  convicted  in  the  appel- 
late court,  or  if  sentenced  for  failing  to  prosecute  his 
appeal,  he  may  be  required  as  a  part  of  the  sentence  to 
pay  the  costs  of  prosecution.  If  the  appellant  shall 
fail  to  enter  and  prosecute  his  appeal  he  shall  be  de- 
faulted of  his  recognizance,  if  any  was  taken,  and  the 
superior  court  may  award  sentence  against  him  for  the 
offense  whereof  he  was  convicted  in  like  manner  as  if 


PROCEDURE,  165 

he  had  been  convicted  thereof  in  that  conrt;  and  if  he 
be  not  then  in  custody  process  may  be  issued  to  bring 
into  court  to  receive  sentence.  [1920.] 


§  293.    EXAMINATION  UPON  COMPLAINT. 

It  is  the  duty  of  the  justice  of  the  peace  to  examine  one 
who  complains  that  criminal  injury  has  been  done  him,  to- 
gether with  such  witnesses  as  he  may  have.  The  complaint 
is  reduced  to  writing  and  signed  by  complainant  and  a  war- 
rant is  issued.  This  is  the  preliminary  examination  upon 
which  an  offender  may  be  bound  over  to  the  superior  court  of 
the  county.  The  prosecuting  attorneys  of  the  various 
counties  of  this  state  have  always  a  number  of  such  cases 
which  they  bring  in  the  name  of  the  state  before  the  justices 
for  preliminary  examination,  in  the  course  of  which  the  ae- 
cus,ed  is  either  discharged  or  punished  withijp  the  jurisdic- 
tion or  bound  over  to  the  superior  court.  The  hearing  is 
in  the  form  of  a  trial  of  the  usual  kind;  the  state  appear- 
ing by  the  prosecuting  attorney  and  the  defendant,  if  he 
have  a  lawyer,  being  represented  by  him  on  the  examina- 
tion. Witnesses  are  questioned  by  both  counsel;  both  ad- 
dress the  court,  and  if  the  evidence  warrants,  the  court 
commits  the  defendant  to  the  superior  court  for  trial. 

Upon  complaint  being  made  to  any  justice  of  the 
peace,  or  judge  of  the  superior  court,  in  open  court,  or 
in  vacation,  that  a  criminal  offense  has  been  committed, 
he  shall  examine  on  oath  the  complainant,  and  any 
witness  provided  by  him,  and  shall  reduce  the  complaint 
to  writing,  and  shall  cause  the  same  to  be  subscribed 
by  the  complainant,  and  if  it  shall  appear  that  any  of- 
fense has  been  committed  of  which  the  superior  court 
has  exclusive  jurisdiction,  the  magistrate  shall  issue  a 
warrant  reciting  the  substance  of  the  accusation,  and 
requiring  the  officer  to  whom  it  shall  be  directed  forth- 
with to  take  the  person  accused  and  bring  him  before 
the  person  issuing  the  warrant,  unless  he  shall  be  ab- 
sent or  unable  to  attend  thereto,  then  before  some 
other  magistrate  of  the  county,  to  be  dealt  with  ac- 
cording to  law,  and  in  the  same  warrant  may  require 
the  officer  to  summon  such  witnesses  as  shall  be  therein 
named,  to  appear  and  give  evidence  on  the  examina- 
tion. [1949.] 


166  JUSTICE  OF  THE  PEACE  GUIDE. 

§  294.    TRIAL  WHEN  JUSTICE  HAS  JURISDICTION  OF 
OFFENSE. 

If  it  shall  appear  that  an  offense  has  been  committed 
of  which  a  justice  of  the  peace  has  jurisdiction,  and  one 
which  would  be  sufficiently  punished  by  a  fine  not  ex- 
ceeding one  hundred  dollars,  if  the  magistrate  having 
the  complaint  is  a  justice  of  the  peace,  he  shall  cause 
the  complaint  to  be  ordered  and  proceed  as  in  like  cases 
before  a  justice  of  the  peace ;  or,  if  any  other  magistrate, 
he  shall  certify  the  papers,  with  a  statement  of  the  of- 
fense appearing  to  be  proved,  to  the  nearest  justice  of 
the  peace,  and  shall,  by  order,  require  the  defendant  and 
the  witnesses  to  enter  into  recognizances  with  sufficient 
sureties  to  be  approved  by  the  magistrate,  for  their  ap- 
pearance before  such  justice  at  the  time  and  place  stated 
in  the  order;  and  such  justice  shall  proceed  to  the  trial 
of  the  action  as  if  originally  commenced  before  him. 
[1955.] 

§  295.    BAIL  WHEN   JUSTICE   HAS   NOT   JURISDIC- 
TION. 

If  the  offense  is  one  that  must  be  tried  in  a  court  of  larger 
jurisdiction,  the  justice  of  the  peace  may  release  the  defend- 
ant on  security  for  his  appearance  in  the  superior  court. 

If  it  appear  that  a  bailable  offense  has  been  com- 
mitted, the  magistrate  shall  order  the  defendant  to  enter 
into  recognizance,  with  sufficient  sureties,  for  his  ap- 
pearance in  the  superior  court  to  answer  the  charge, 
and  if  he  shall  not  do  so,  or  the  offense  be  not  bailable, 
he  shall  commit  *»"»  to  jail.  The  justice  of  the  peace 
who  committed  the  person,  or  the  judge  of  the  superior 
court  to  which  the  party  is  held  to  answer,  may  admit 
to  bail  in  the  amount  required  and  approve  the  sureties. 
The  recognizance  shall  be  conditioned  in  effect  that  the 
defendant  will  appear  in  the  superior  court  to  answer 
said  charge  whenever  the  same  shall  be  prosecuted,  and 
at  all  times,  until  discharged  according  to  law,  render 
himself  amenable  to  the  orders  and  process  of  the  su- 
perior court,  and,  if  convicted,  render  himself  in  execu- 
tion of  the  judgment.  [1957.] 


PROCEDURE.  167 

FORM. 
In  Justice's  Court. 

Before  John  E.  Carroll,  Justice  of  the  Peace,  in  and  for 
Seattle  Precinct,  King  County,  State  of  Washing- 
ton. 

No 

The  State  of  Washington, 
Plaintiff, 
v. 


Defendant.. 

COMMITMENT— WHERE    NO    JURISDICTION    TO 

TRY. 

State  of  Washington, 
County  of  King, — ss. 

The  State  of  Washington  to  the  Sheriff  of  King  County, 
or  to  Any  Constable  of  Said  King  County,  and  the 
Keeper  of  the  County  Jail  of  Said  King  County, 
Greeting: 

Whereas ,  defendant. .  ha. .  been  brought 

this  day  before  the  undersigned,  one  of  the  justices  of 
the  peace  in  and  for  said  county,  charged  on  the  oath 

of with  having  on  the  day  of , 

A.  D.  19 ,  in  said  King  County  committed  the  of- 
fense of  ...» ,  and  whereas  upon  the  preliminary 

examination  of  said  defendant. .  on  said  charge  it  ap- 
pearing to  the  said  justice  that  the  offense  of 

has  been  committed  and  that  there  is  probable  cause  to 
believe  that  the  said ,  defendant. .,  ha. .  com- 
mitted said  offense  at  the  time  and  place  aforesaid ;  and 

whereas,  the  said ,  defendant..,  are  held  for 

trial  to  the  superior  court  of  King  County,  state  of 
Washington,  in  bonds  fixed  at  the  sum  of dol- 
lars, ha. .  failed  to  give  said  bail  for appearance 

to  answer  in  the  superior  court  of  said  county,  as  re- 
quired by  me ; 

Therefore,  in  the  name  of  the  state  of  Washington, 
you  are  commanded  to  receive  the  said  ,  de- 
fendant. .,  into  your  custody  in  the  said  jail,  and 


168  JUSTICE  OP  THE  PEACE  GUIDE. 

there  safely  keep  until   ..he.,  be  discharged  by  due 
course  of  law. 

Given  under  my  hand  this day  of ,  A.  D. 

19.. 


Justice  of  the  Peace,  Seattle  Precinct,  King  County, 
Washington. 

State  of  Washington, 
County  of  King, — ss. 

I  hereby  certify  that  I  served  the  within  commitment 

by  delivering  the  within  named to  the  custody 

of  the  keeper  of  the  jail  of  King  County,  Washington 
this day  of ,  A.  D.  19 


Sheriff,  King  County,  Washington. 

, 

Deputy. 


Fees: 

Service $ 

Custody $ 

Mileage I  » 

Returns  .  . .{» 


No In  Justice's  Court.  Before  John  E.  Car- 
roll, Justice  of  the  Peace,  Seattle  Precinct,  King  County, 
State  of  Washington.  State  of  Washington,  Plaintiff, 
v ,  Defendant.  Commitment  Where  No  Juris- 
diction to  Try.  Filed A.  D.  19 , 

Justice  of  the  Peace. 

§  296.  RECOGNIZANCE  OF  WITNESSES. 

The  witness  may  be  required  to  recognize  for  his  appear- 
ance in  the  superior  court  to  testify  in  the  cause,  and  failing 
to  so  recognize  may  be  held  in  the  county  jail  until  the 
trial.  This  may  seem  a  harsh  rule,  but  it  is  well  founded 
in  the  policy  of  public  protection.  So  many  things  may 
happen  to  an  unsecured  witness.  Criminal  cases  are  so  often 
long  delayed  in  coming  to  trial ;  witnesses  of  crimes  and  of- 
fenses are  often  very  queer  company  themselves — persons, 
we  may  say,  who  get  into  some  peculiar  places  and  posi- 
tions— that  this  measure  of  securing  their  appearance  must 
be  had.  Under  certain  circumstances,  as  shown  in  the  stat- 


PROCEDURE.  169 

ute,  the  depositions  of  such  witnesses  may  be  taken,  and 
taken,  save  for  the  cross-examination,  in  the  narrative  form. 

All  witnesses  required  to  recognize  with  or  without 
sureties  shall,  if  they  refuse,  be  committed  to  the  county 
jail  by  the  magistrate,  there  to  remain  until  they  com- 
ply with  such  orders  or  be  otherwise  discharged  ac- 
cording to  law:  Provided,  that  when  the  magistrate  is 
satisfied  that  any  witness  required  to  recognize  with 
sureties  is  unable  to  comply  with  such  order,  he  shall 
immediately  take  the  deposition  of  such  witness  and 
discharge  him  from  custody  upon  his  own  recognizance. 
The  testimony  of  the  witness  shall  be  reduced  to  writ- 
ing by  a  justice  or  some  competent  person  under  his 
direction,  and  he  shall  take  only  the  exact  words  of  the 
witness;  the  deposition,  except  the  cross-examination 
shall  be  in  the  narrative  form,  and  upon  the  cross-ex- 
amination the  questions  and  answers  shall  be  taken  in 
'full.  The  defendant  must  be  present  in  person  when 
the  deposition  is  taken,  and  shall  have  an  opportunity 
to  cross-examine  the  witnesses;  he  may  make  any  ob- 
jections to  the  admission  of  any  part  of  the  testimony, 
and  all  objections  shall  be  noted  by  the  justice ;  but  the 
justice  shall  not  decide  as  to  the  admissibility  of  the 
evidence,  but  shall  take  all  the  testimony  offered  by  the 
witness.  The  deposition  must  be  carefully  read  to  the 
witness,  and  any  corrections  he  may  desire  to  make 
thereto  shall  be  made  in  presence  of  the  defendant  by 
adding  the  same  to  the  deposition  as  first  taken ;  it  must 
be  signed  by  the  witness,  certified  by  the  justice,  and 
transmitted  to  the  clerk  of  the  superior  court,  in  the 
same  manner  as  depositions  in  civil  actions.  And  if  the 
witness  is  not  present  when  required  to  testify  in  the 
case,  either  before  the  grand  jury  or  upon  the  trial  in 
the  superior  court,  the  deposition  shall  be  submitted  to 
such  judge  of  the  superior  court,  upon  the  objections 
noted  by  the  justice,  and  such  judge  shall  suppress  so 
much  of  said  deposition  as  he  shall  find  to  be  inadmis- 
sible, and  the  remainder  of  the  deposition  may  be  read 
as  evidence  in  the  case,  either  before  the  grand  jury  or 
upon  the  trial  in  the  court.  [1962.] 

When  necessary  the  deposition  is  reduced  to  writing  and 
signed  by  the   witness. 


170 


JUSTICE  OF  THE  PEACE  GUIDE. 


§  297.    DEPOSITION  TO  BE  WRITTEN  AND  SIGNED. 
The  testimony  of  the  witness  examined   shall  be  re- 
duced  to  writing  by  the  magistrate,  or  under  his  direc- 
tion, when  he  shall  think  it  necessary,  and  shall  be 
signed  by  the  witnesses.     [1953.] 

§  2S8.  RECORD  TO  BE  TRANSCRIBED  TO  SUPERIOR 
COURT. 

It  shall  be  the  duty  of  all  magistrates  within  this 
state,  before  whom  any  person  or  persons  shall  be  com- 
mitted or  held  to  bail  to  answer  to  any  crime,  to  return 
their  proceedings,  duly  certified,  including  a  copy  of 
all  recognizances  taken  by  them,  to  the  clerk  of  the  su- 
perior court  within  ten  days  after  the  final  hearing  and 
commitment  or  holding  to  bail,  as  aforesaid,  and  any 
justice  of  the  peace  who  shall  fail  or  neglect  to  make 
such  return  shall  not  be  entitled  to  receive  any  fees  or 
costs  in  such  case.  [1963.] 

FORM. 
No 

In  Justice's  Court. 

Before  John  E.  Carroll,  Justice  of  the  Peace,  in  and  for 
Seattle  Precinct,  King  County,  State  of  Washing- 
ton. 


State  of  Washington, 
County  of  King, — ss. 


19. 


State  of  Washington, 
Plaintiff, 

T. 

Cost  Book 
J.P. 

Taxable  ||    Amt. 
Costs    1  1    Paid 

Date  Paid 

Witness  Fees 

Constable  Fees 

Defendant. 

Attorney's  Fees 

PROCEDURE.  171 

Complaint  filed  in  writing 19. . . . 

Sworn  to  by 

Charging 

with  the  crime  of 

19. .,   in   King   County,    Washington 

Warrant  issued,  served  by 

who  arrested  the  defendant. .   and  brought   

into  court 19 

Bonds  $ Set  for 19 M. 

§  299.    SUIT  AGAINST  WITNESS  ON  THE  BOND. 

When  any  person  under  recognizance  in  any  criminal 
prosecution,  either  to  appear  and  answer  before  a  jus- 
tice, or  to  testify  in  any  court,  shall  fail  to  perform  the 
condition  of  any  recognizance,  his  default  shall  be  re- 
corded;  and  it  shall  be  the  duty  of  the  prosecuting  at- 
torney to  proceed  at  once,  by  action  against  the  person 
.  bound  by  recognizance,  or  such  of  them  as  he  may  elect. 
[1965.] 

§  300.    COSTS  TO  BE  FORWARDED. 

The  costs  accrued  in  the  lower  court  must  also  be  certified 
to  the  superior  court. 

In  all  cases  where  any  magistrate  shall  order  a  de- 
fendant to  recognize  for  his  appearance  before  a  justice 
of  the  peace,  or  the  superior  court,  he  shall  forward  with 
the  papers  in  the  case  an  abstract  of  the  costs  that  have 
accrued  in  the  case,  and  such  costs  shall  be  subject  to 
the  final  determination  of  the  case.  [1966.] 

§  301.    COMPLAINANT  PAYS  COSTS  FOR  MALICIOUS 
COMPLAINT. 

The  party  making  a  complaint  which  turns  out  upon  the 
hearing  to  have  been  made  maliciously  or  frivolously  is 
taxed  with  the  costs  and  may  be  committed  to  jail  in  de- 
fault of  payment  thereof. 

•  If  it  should  appear  upon  the  whole  examination  that 
no  offense  has  been  committed,  or  that  there  is  not  prob- 
able cause  for  charging  the  defendant  with  an  offense, 
he  shall  be  discharged,  and  if  in  the  opinion  of  the 
magistrate  the  complaint  was  malicious  or  without 
probable  cause,  and  there  was  no  reasonable  ground 


172  JUSTICE  OF  THE  PEACE  GUIDE. 

therefor,  the  costs  shall  be  taxed  against  the  party  mak- 
ing the  complaint.     [1954.] 

§  302.     COMPOUND  OP  MISDEMEANORS. 

When  any  person  shall  be  committed  to  prison,  or 
shall  be  under  examination  or  recognizance  to  answer 
any  charge  for  a  misdemeanor  for  which  the  party  in- 
jured may  have  a  remedy  by  civil  action,  except  where 
the  offense  was  committed  upon  a  sheriff  or  other  offi- 
cer, justice,  or  violently,  or  with  intent  to  commit  a 
felony,  if  the  party  injured  shall  appear  before  the 
magistrate  who  made  the  commitment  or  took  the  recog- 
nizance, or  is  conducting  the  examination,  and  acknowl- 
edge in  writing  that  he  has  received  satisfaction  for  the 
injury,  the  magistrate  may,  in  his  discretion,  on  pay- 
ment of  all  costs  which  may  have  accrued,  discharge  the 
recognizance,  or  supersede  the  commitment  by  an  order 
under  his  hand,  and  may  also  discharge  all  recognizance 
and  supersede  the  commitment  of  all  witnesses  in  the 
case.  [1964.] 

FORMS. 
In  Justice's  Court. 

Before  John  E.  Carroll,  Justice  of  the  Peace,  in  and  for 
Seattle  Precinct,  King  County,  State  of  Washing- 
ton. 

No 

State  of  Washington," 
Plaintiff, 
v. 


Defendant^ 

AFFIDAVIT  FOR  SEARCH-WARRANT. 

State  of  Washington, 
County  of  King, — ss. 

,  being  first  duly  sworn,  on  oath  deposes  and 

says,  that  the  following  goods  and  chattels,  to  wit: 

,  the  property  of  the  said ,  have  been 

within  days  past,  or  were  on  the day  of 

,  19 ,  by  some  person  or  persons  unknown, 

stolen,  taken  and  carried  away  out  of  the  possession  of 
the  said in  the  county  aforesaid;  and  also  that 


PROCEDURE.  173 

the  said verily  believes  that  the  said  goods  or 

a  part  thereof  are  concealed  in  or  about  the  house  of 
,  in  said  county  


Subscribed  and  sworn  to  before  me  this day  of 

, ,  A.D.  19 


Justice   of  the   Peace,   in   and   for   Seattle   Precinct, 
King  County,  Washington. 

SEARCH-WARRANT. 

The  State  of  Washington, 
County, — ss. 

To  the  Sheriff  or  Any  Constable  of  Said  County. 

Whereas,  A  B  has  this  day  made  complaint  on  oath  to 
the  undersigned,  one  of  the  justices  of  the  peace  in  and 
for  said  county,  that  the  following  goods  and  chattels, 
to  wit  [here  describe  them],  the  property  of  the  said 

A  B,  have  been  within days  past,  or  were  on  the 

....  day  of  ,  by  some  person  or  persons  un- 
known, stolen,  taken,  and  carried  away  out  of  the  pos- 
session of  the  said  A  B  in  the  county  aforesaid;  and, 
also,  that  the  said  A  B  verily  believes  that  the  said 
goods  or  a  part  thereof  are  concealed  in  or  about  the 
house  of  C  D,  in  said  county  [here  describe  the  premises 
to  be  searched] ;  therefore,  in  the  name  of  the  state  of 
Washington,  you  are  commanded  that,  with  the  neces- 
sary and  proper  assistance,  you  enter  into  the  said  house 
[describe  the  premises  to  be  searched]  and  then  dili- 
gently search  for  the  said  goods  and  chattels ;  and  if  the 
same  or  any  part  thereof  be  found  on  such  search,  bring 
the  same,  and  also  the  same  C  D,  forthwith  before  me, 
to  be  disposed  of  according  to  law. 

Given  under  my  hand  this   day  of   , 

19 

JP, 

Justice  of  the  Peace. 


174  JUSTICE  OF  THE  PEACE  QUIDS. 


CHAPTER  XVIIL 
CRIMES. 

I  303.  Accessory  to  a  crime. 

§  304.  Acquittal,  foreign. 

§  305.  Acquittal  or  conviction  in  other  county. 

§  306.  Adultery. 

§  307.  Amusement,  dangerous. 

§  308.  Animals — Vicious  animals  at  largo. 

§  309.  Animals — Diseased. 

§  310.  Animals — Disposal  of  carcasses. 

§  311.  Animals,  injury  to. 

§  312.  Arson. 

§  313.  Automobiles — Spee'd  of. 

§  314.  Beggar  is  vagrant. 

§  315.  Brands  on  animals,  etc. 

§  316.  Brand,  imitating  lawful. 

§  317.  Burglary. 

§  318.  Child,  abandonment  of. 

§  319.  Concert  halls,  minors  in. 

§  320.  Children,  employment  of. 

§  321.  Conveyance — Offenses  in  publie. 

§  322.  Defendant. 

§  323.  Desecration  of  flag. 

§  324.  Felony. 

§  325.  Felony — Punishment,  when  not  fixed  by  statute. 

§  326.  Firearms. 

§  327.  Forgery. 

§  328.  Gambling. 

§  329.  Highways. 

§  330.  Intoxicating  liquors. 

§  331.  Manslaughter. 

§  332.  Misdemeanor  defined. 

§  333.  Murder. 

§  334.  Murder  in  the  second  degree. 

§  335.  Orchard,  injury  to. 

§  336.  Public  peace,  crimes  against. 

§  337.  Sabbath-breaking. 

§  338.  Eeligious  meeting,  disturbing. 

§  339.  Vagrancy. 

§  303.  ACCESSORY  TO  A  CRIME. 

Every  person  not  standing  in  the  relation  of  husband 
or  wife,  brother  or  sister,  parent  or  grandparent,  child 


CHIMES.  175 

or  grandchild,  to  the  offender,  who  after  the  commission 
of  a  felony  shall  harbor,  conceal  or  aid  such  offender 
with  intent  that  he  may  avoid  or  escape  from  arrest, 
trial,  conviction  or  punishment,  having  knowledge  that 
such  offender  has  committed  a  felony  and  is  liable  to 
arrest,  is  an  accessory  to  the  felony.  [2008.] 

§  304.    ACQUITTAL,  FOREIGN. 

Whenever,  upon  the  trial  of  any  person  for  a  crime  it 
appears  that  the  offense  was  committed  in  another  state 
or  country,  under  such  circumstances  that  the  courts  of 
this  state  had  jurisdiction  thereof,  and  that  the  defend- 
ant has  already  been  acquitted  or  convicted  upon  the 
merits,  upon  a  criminal  prosecution  under  the  laws  of 
such  state  or  country,  founded  upon  the  act  or  omission 
with  respect  to  which  he  is  upon  trial,  such  former  ac- 
quittal or  conviction  is  a  sufficient  defense. 

§  3'05.    ACQUITTAL     OR     CONVICTION     IN     OTHER 
COUNTY. 

Whenever,  upon  the  trial  of  any  person  for  a  crime, 
it  shall  appear  that  the  defendant  has  already  been  ac- 
quitted or  convicted  upon  the  merits,  of  the  same  crime, 
in  a  court  having  jurisdiction  of  such  offense  in  another 
county  of  this  state,  such  former  acquittal  or  conviction 
is  a  sufficient  defense. 

§  306.    ADULTERY. 

Whenever  any  married  woman  shall  have  sexual  in- 
tercourse with  a  man  other  than  her  husband,  whether 
married  or  not,  both  shall  be  guilty  of  adultery  and  pun- 
ished by  imprisonment  in  the  state  penitentiary  for  not 
more  than  two  years  or  by  a  fine  of  not  more  than  one 
thousand  dollars;  provided,  that  no  prosecution  for  vio- 
lation of  this  section  shall  be  commenced  except  on  com- 
plaint of  the  husband  or  wife,  nor  after  one  year  from 
the  commission  of  the  offense.  [2457.] 

§  307.    AMUSEMENT,  DANGEROUS. 

Every  proprietor,  lessee  or  occupant  of  any  place  of 
amusement,  or  any  plat  of  ground  or  building,  who  shall 
allow  it  to  be  used  for  the  exhibition  of  skill  in  throw- 
ing any  sharp  instrument  or  in  shooting  any  bow-gun, 
pistol  or  firearm  of  any  description,  at  or  toward  any 
human  being,  shall  be  guilty  of  a  misdemeanor.  [2535.] 


176  JUSTICE  OF  THE  PEACE  GUIDE. 

§  308.    ANIMALS— VICIOUS  ANIMALS  AT  LARGE. 

Every  person  having  the  care  or  custody  of  any  ani- 
mal known  to  possess  any  vicious  or  dangerous  tenden- 
cies, who  shall  allow  the  same  to  escape  or  run  at  large 
in  any  place  or  manner  liable  to  endanger  the  safety  of 
any  person,  shall  be  guilty  of  a  misdemeanor;  and  any 
person  may  lawfully  kill  such  animal  when  reasonably 
necessary  to  protect  his  own  or  the  public  safety. 
[2538.] 

§  309.    ANIMALS— DISEASED. 

Every  owner  or  person  having  charge  thereof,  who 
shall  import  or  drive  into  this  state,  or  who  shall  turn 
out  or  suffer  to  run  at  large  upon  any  highway  or  unin- 
closed  lands,  or  upon  any  lands  adjoining  the  inclosed 
lands  kept  by  any  person  for  pasture ;  or  who  shall  keep 
or  allow  to  be  kept  in  any  barn  with  other  animals,  or 
water  or  allow  to  be  watered  at  any  public  drinking 
fountain  or  watering  place,  any  animal  having  any  con- 
tagious or  infectious  disease,  or  who  shall  sell,  let  or  dis- 
pose of  any  such  animal  knowing  it  to  be  so  diseased, 
without  first  apprising  the  purchaser  or  person  taking  it 
of  the  existence  of  such  disease,  shall  be  guilty  of  a  mis- 
demeanor. [2540.] 

§  310.    ANIMALS— DISPOSAL  OF  CARCASSES. 

Every  person  owning  or  having  in  charge  any  animal 
that  has  died  or  been  killed  on  account  of  disease,  shall 
immediately  bury  the  carcass  thereof  at  least  three  feet 
underground,  or  cause  the  same  to  be  consumed  by  fire. 
No  person  shall  sell  or  offer  to  sell  or  give  away  the  car- 
cass of  any  animal  which  died  or  was  killed  on  account 
of  disease,  or  convey  the  same  along  any  public  road  or 
land  not  his  own.  Every  violation  of  any  provision  of 
this  section  shall  be  a  misdemeanor.  [2541.] 

§  311.    ANIMALS,  INJURY  TO. 

Every  person  who  shall  willfully  kill,  maim  or  dis- 
figure any  animal  belonging  to  another,  or  expose  any 
poisons  or  noxious  substance  with  intent  that  it  shall  be 
taken  by  such  animal — shall  be  guilty  of  a  misde- 
meanor. [2659.] 


CRIMES.  177 

§  312.    ABSON. 

First  Degree: 

Every  person  who  shall  willfully — 

1.  Bum  or  set  on  fire  in  the  night-time  the  dwelling- 
house  of  another,  or  any  building  in  which  there  shall 
be  at  the  time  a  human  being;  or 

2.  Set  any  fire  manifestly  dangerous  to  any  human 
life,  shall  be  guilty  of  arson  in  the  first  degree  and  be 
punished  by  imprisonment  in  the  state  penitentiary  for 
not  less  than  five  years. 

Second  Degree : 

Every  person  who,  under  circumstances  not  amount- 
ing to  arson  in  the  first  degree,  who  shall  willfully  burn 
or  set  on  fire  any  building,  or  any  structure  or  erection 
appurtenant  to  or  adjoining  any  building,  or  any  struc- 
ture or  erection  appurtenant  to  or  adjoining  any  build- 
'  ing,  or  any  wharf,  dock,  threshing  machine,  threshing 
engine,  bridge  or  trestle,  or  any  hay,  grain,  crop  or  tim- 
ber, whether  cut  or  standing,  or  any  lumber,  shingle  or 
other  timber  products,  shall  be  guilty  of  arson  in  the 
second  degree,  and  shall  be  punished  by  imprisonment 
in  the  state  penitentiary  for  not  more  than  ten  years, 
or  by  a  fine  of  not  more  than  five  thousand  dollars. 

Contiguous  Fires: 

Whenever  any  building  or  structure  which  may  be 
the  subject  of  arson  in  either  the  first  or  second  degree 
shall  be  so  situated  as  to  be  manifestly  endangered  by 
any  fire  and  shall  subsequently  be  set  on  fire  thereby, 
any  person  participating  in  setting  such  fire  shall  be 
deemed  to  have  participated  in  setting  such  building  or 
structure  on  fire. 

"Set  on  Fire"  Defined: 

A  building,  structure  or  any  property  mentioned  in 
section  312  (above)  hereof  shall  be  deemed  "set  on 
fire"  whenever  any  part  thereof  or  anything  therein 
shall  be  scorched,  charred  or  burned. 

Ownership  of  Building: 

To  constitute  arson  it  shall  not  be  necessary  that  an- 
other person  than  the  defendant  should  have  had  owner- 
ship in  the  building  or  structures  set  on  fire. 

12 


178  JUSTICE  OF  THE  PEACE  GUIDE. 

Preparation  is  Attempt: 

Any  willful  preparation  made  by  any  person  with  a 
view  to  setting  fire  to  any  building  or  structure  shall  be 
deemed  to  be  an  attempt  to  commit  the  crime  of  arson, 
and  shall  be  punished  as  such.  [2572.] 

§  313.    AUTOMOBILES— SPEED  OP. 

Every  person  who  shall  drive  or  operate,  and  every 
owner,  lessee  or  other  person  in  charge  thereof  who  shall 
permit  to  be  driven  or  operated,  any  automobile  or 
motor  vehicle  on  any  public  road,  highway,  park  or 
parkway,  street  or  avenue,  within  this  state — 

1.  Within  a  thickly  settled  or  business  portion  of  any 
city  or  town,  at  a  rate  of  speed  faster  than  one  mile  in 
five  minutes;  or 

2.  Over  any  crossing,  cross-walk,  or  street  intersection 
within  the  limits  of  any  city  or  town,  when  any  person 
is  upon  the  same,  at  a  rate  of  speed  faster  than  one  mile 
in  fifteen  minutes ;  or 

3.  At  any  other  place,  at  a  rate  of  speed  faster  than 
one  mile  in  two  and  one-half  minutes;  or 

4.  Upon  any  public  road,  highway,  park  or  parkway, 
street  or  avenue,  at  any  unsafe  or  unreasonable  rate  of 
speed,  having  proper  regard  to  the  safety  of  any  other 
person  or  persons  using  the  same,  shall  be  guilty  of  a 
misdemeanor.    [2531.] 

§  314.    BEGGAR  IS  VAGRANT. 

Every  person — healthy  person — who  solicits  alms  is 
a  vagrant,  and  shall  be  punished  by  imprisonment  in  the 
county  jail  for  not  more  than  six  months,  or  by  a  fine 
of  not  more  than  five  hundred  dollars.  [2688.] 

§  315.    BRANDS  ON  ANIMALS,  ETC. 

Every  person  who  shall  willfully  deface,  obliterate, 
remove  or  alter  any  mark  or  brand  placed  by  or  with 
the  authority  of  the  owner  thereof  on  any  shingle  bolt, 
log  or  stick  of  timber,  or  on  any  horse,  mare,  gelding, 
mule,  cow,  steer,  bull,  sheep,  goat  or  hog,  shall  be  pun- 
ished by  imprisonment  in  the  state  penitentiary  for  not 
more  than  five  years,  or  by  imprisonment  in  the  county 
jail  for  not  more  than  one  year,  or  by  a  fine  of  not  more 
than  one  thousand  dollars,  or  by  both  fine  and  imprison- 
ment. [2594.] 


CHIMES.  179 

§  316.    BRAND,  IMITATING  LAWFUL. 

Every  person  who,  in  any  county,  shall  place  upon  any 
property  any  brand  or  mark  in  the  likeness  or  similitude 
of  another  brand  or  mark  filed  with  the  county  auditor 
of  such  county  by  the  owner  thereof  as  a  brand  or  mark 
for  the  designation  or  identification  of  a  like  kind  of 
property,  shall — 

1.  If  done  with  intent  to  confuse  or  commingle  such 
property  with,  or  appropriate  to  his  own  use,  the  prop- 
erty of  such  other  owner,  be  guilty  of  a  felony,  and  be 
punished  by  imprisonment  in  the  state  penitentiary  for 
not  more  than  five  years,  or  by  imprisonment  in  the 
county  jail  for  not  more  than  one  year,  or  by  a  fine  of 
not  more  than  one  thousand  dollars,  or  by  both  fine  and 
imprisonment;  or 

2.  If  done  without  such  intent,  shall  be  guilty  of  a 
misdemeanor.     [2595.] 

§  317.    BURGLARY. 

First  Degree: 

Every  person  who,  with  intent  to  commit  some  crime 
therein,  shall  enter  in  the  night-time,  the  dwelling-house 
of  another  in  which  there  shall  be  at  the  time  a  human 
being — 

1.  Being  armed  with  a  dangerous  weapon;  or 

2.  Arming  himself  therein  with  such  a  weapon;  or 

3.  Being  assisted  by  a  confederate  actually  present;  or 

4.  Who,  while  engaged  in  the  night-time  in  effecting 
such  entrance,  or  in  committing  any  crime  in  such  build- 
ing or  in  escaping  therefrom,  shall  assault  any  person ;  or 

5.  Who,  with  intent  to  commit  some  crime  therein, 
shall  break  and  enter  any  bank,  postoflfice,  railway  ex- 
press or  railway  mail  car,  shall  be  guilty  of  burglary  in 
the  first  degree  and  shall  be  punished  by  imprisonment 
in  the  state  penitentiary  for  not  less  than  five  years. 

Second  Degree: 

Every  person  who,  with  intent  to  commit  some  crime 
therein  shall,  under  circumstances  not  amounting  to 
burglary  in  the  first  degree,  enter  the  dwelling-house  of 
another  or  break  and  enter,  or,  having  committed  a 
crime  therein,  shall  break  out  of,  any  building  or  part 
thereof,  or  a  room  or  other  structure  wherein  any  prop- 
erty is  kept  for  use,  sale  or  deposit,  shall  be  guilty  of 


180  JUSTICE  OF  THE  PEACE  GUIDE. 

burglary  in  the  second  degree  and  shall  be  punished  by 
imprisonment  in  the  state  penitentiary  for  not  more  than 
fifteen  years. 

Presumption  of  Intent: 

Every  person  who  shall  unlawfully  break  and  enter 
or  unlawfully  enter  any  building  or  structure  enumer- 
ated in  this  section  of  this  act  shall  be  deemed  to  have 
broken  and  entered  or  entered  the  same  with  intent  to 
commit  a  crime  therein,  unless  such  unlawful  breaking 
and  entering  or  unlawful  entry  shall  be  explained  by 
testimony  satisfactory  to  the  jury  to  have  been  made 
without  criminal  intent. 

Crime  in  Building: 

Every  person  who,  in  the  commission  of  a  burglary 
shall  commit  any  other  crime,  shall  be  punished  there- 
for as  well  as  for  the  burglary,  and  may  be  prosecuted 
for  each  crime  separately.  [2578.] 

Burglar  Tools: 

Every  person  who  shall  make  or  mend  or  cause  to  be 
made  or  mended,  or  have  in  his  possession  in  the  day  or 
night-time,  any  engine,  machine,  tool,  false  key,  pick, 
lock,  bit,  nippers  or  implement  adapted,  designed  or 
commonly  used  for  the  commission  of  burglary,  larceny 
or  other  crime,  under  circumstances  evincing  an  intent 
to  use  or  employ,  or  allow  the  same  to  be  used  or  em- 
ployed in  the  commission  of  a  crime,  or  knowing  that 
the  same  is  intended  to  be  so  used,  shall  be  guilty  of  a 
gross  misdemeanor.  The  possession  thereof  except  by  a 
mechanic,  artificer  or  tradesman  at  and  in  his  established 
shop  or  place  of  business,  open  to  public  view,  shall  be 
prima  facie  evidence  that  such  possession  was  had  with 
intent  to  use  or  employ  or  allow  the  same  to  be  used  or 
employed  in  the  commission  of  a  crime.  [2582.] 

§  318.    CHILD,  ABANDONMENT  OF. 

Every  person  who  shall  willfully  and  without  lawful 
excuse  desert,  or  willfully  neglect  or  refuse  to  provide  for 
the  support  and  maintenance  of  his  wife,  or  child  under 
the  age  of  sixteen  years,  either  said  wife  or  child  being 
in  necessitous  circumstances,  shall  be  punished  by  im- 
prisonment in  the  state  penitentiary  for  not  more  than 
three  years,  or  in  the  county  jail  for  not  more  than  one 
year,  or  by  a  fine  of  not  more  than  one  thousand  dollars, 
or  by  both  fine  and  imprisonment.  (Proviso.)  [2444.] 


CHIMES.  181 

§  319.     CONCERT  HALLS,  MINORS  IN. 

Every  person  who — 

1.  Shall  admit  to  or  allow  to  remain  in  any  dance- 
house,  public  pool  or  billiard  hall,  concert  saloon,  or  in 
any  place  except  a  restaurant  or  dining-room,  where  in- 
toxicating liquors  are  sold  or  given  away,  or  in  any 
place  of  entertainment  injurious  to  the  health  or  morals, 
owned,  kept  or  managed  by  him,  in  whole  or  in  part,  any 
person  under  the  age  of  twenty-one  years ;  or, 

2.  Shall  suffer  or  permit  any  such  person  to  play  any 
game  of  skill  or  chance,  in  any  such  place  or  in  any  place 
adjacent  thereto,  or  to  be  or  remain  therein,  or  admit 
or  allow  to  remain  in  any  reputed  house  of  prostitution 
or  assignation,  or  in  any  place  where  opium,  or  any 
preparation  thereof,  is  smoked,  or  where  any  narcotic 
drug  is  used,  any  person  under  the  age  of  twenty-one 
years;  or 

3.  Shall  sell,  or  give,  or  permit  to  be  sold,  or  given  to 
any  person  under  the  age  of  twenty-one  years  any  in- 
toxicating liquor,  cigar,  cigarette,  cigarette  paper  or 
wrapper,  or  tobacco  in  any  form;  or 

4.  Shall  sell,  or  give,  or  permit  to  be  sold  or  given  to 
any  person  under  the  age  of  eighteen  years,  any  re- 
volver, pistol  or  toy  pistol; 

Shall  be  guilty  of  a  gross  misdemeanor. 

It  shall  be  no  defense  to  a  prosecution  for  a  violation 
of  this  section  that  the  person  acted,  or  was  believed  by 
the  defendant  to  act,  as  agent  or  representative  of  an- 
other. [2445.] 

§  320.     CHILDREN,  EMPLOYMENT  OP. 

Every  person  who  shall  employ,  and  every  parent, 
guardian  or  other  person  having  the  care,  custody  or 
control  of  such  child,  who  shall  permit  to  be  employed, 
by  another,  any  male  child  under  the  age  of  fourteen 
years  or  any  female  child  under  the  age  of  sixteen  years 
at  any  labor  whatever,  in  or  in  connection  with  any 
store,  shop,  factory,  mine  or  any  inside  employment  not 
connected  with  farm  or  house  work,  without  the  writ- 
ten permit  thereto  of  a  judge  of  a  superior  court  of  the 
county  wherein  such  child  may  live,  shall  be  guilty  of  a 
misdemeanor.  [2447.] 

g  321.    CONVEYANCE— OFFENSES  IN  PUBLIC. 

Every  person  who  shall  willfully  use  profane,  of- 
fensive, or  indecent  language  or  engage  in  any  quarrel 


182  JUSTICE  OF  THE  PEACE  GUIDE. 

in  any  public  conveyance,  or  interfere  with  or  annoy 
any  passenger  therein,  or,  having  refused  to  pay  the 
proper  fare,  shall  fail  to  leave  any  such  conveyance  upon 
demand,  or,  with  intent  to  avoid  the  payment  of  fare 
shall  ride  upon  any  car  or  engine  not  commonly  used  for 
the  carriage  of  passengers,  shall  be  guilty  of  a  misde- 
meanor. [2561.] 

§  322.    DEFENDANT. 

Right  to  Counsel: 

Whenever  a  defendant  shall  be  arraigned  upon  the 
charge  that  he  has  committed  any  felony,  and  shall  re- 
quest the  court  to  appoint  counsel  to  assist  in  his  de- 
fense, and  shall  by  his  own  oath  or  such  other  proof  as 
may  be  required  satisfy  the  court  that  he  is  unable,  by 
reason  of  poverty,  to  procure  counsel,  the  court  shall  ap- 
point counsel,  not  exceeding  two,  for  such  defendant,  to 
be  paid  upon  its  order  by  the  county  in  which  such  pro- 
ceeding is  had,  compensation  not  exceeding  ten  dollars 
per  day  for  each  counsel,  for  the  number  of  days  such 
counsel  is  actually  employed  in  court  upon  the  trial. 
[2305.] 

Witnesses : 

Every  person  accused  of  a  crime  shall  have  the  right 
to  meet  the  witnesses  produced  against  him  face  to  face ; 
provided,  that  whenever  any  witness  whose  deposition 
shall  have  been  taken  pursuant  to  law  by  a  magistrate, 
in  the  presence  of  the  defendant  and  his  counsel,  shall 
be  absent  and  cannot  be  found  when  required  to  testify, 
upon  any  trial  or  hearing,  so  much  of  such  deposition  as 
the  court  shall  deem  advisable  and  competent  shall  be 
admitted  and  read  as  evidence  in  such  case.  [2306.] 

Presumption  of  Innocence: 

Every  person  charged  with  the  commission  of  a  crime 
shall  be  presumed  innocent  until  the  contrary  is  proved 
by  competent  evidence  beyond  a  reasonable  doubt;  and 
when  an  offense  has  been  proved  against  him,  and  there 
exists  a  reasonable  doubt  as  to  which  of  two  or  more 
degrees  he  is  guilty,  he  shall  be  convicted  only  of  the 
lowest.  [2308] 

Conviction,  When  Had: 

No  person  informed  against  or  indicted  for  a  crime 
shall  be  convicted  thereof,  unless  by  admitting  the  truth 


CEIMES.  183 

of  the  charge  in  his  plea,  by  confession  in  open  court,  or 
by  the  verdict  of  a  jury,  accepted  and  recorded  by  the 
court.  [2309.] 

Bail,  When  Allowable: 

Every  person  charged  with  an  offense,  except  that  of 
murder  in  the  first  degree  where  the  proof  is  evident 
or  the  presumption  great,  may  be  bailed  by  sufficient 
sureties,  and  bail  shall  justify  and  have  the  same  rights 
as  in  civil  cases,  except  as  otherwise  provided  by  law. 
The  amount  of  bail  in  each  case  shall  be  determined  by 
the  court  in  its  discretion  and  may  from  time  to  time  be 
increased  or  decreased  as  circumstances  may  justify. 
[2310.] 

§  323.    DESECRATION  OF  FLAG. 

Every  person  who,  for  exhibition  or  display,  shall 
cause  to  be  placed  upon  or  affixed  to  any  flag,  standard, 
-  color  or  ensign  of  the  United  States,  or  upon  a  flag, 
standard,  color  or  ensign  purporting  to  be  such,  any  in- 
scription, design,  device,  symbol,  name,  advertisement, 
words,  characters,  picture,  mark  or  notice  whatever,  or 
who  shall  display  or  exhibit  any  such  flag,  standard, 
color  or  ensign  to  which  any  such  inscription,  design, 
device,  symbol,  name,  advertisement,  words,  characters, 
photograph,  mark  or  notice  whatever;  or  who  shall  pub- 
licly mutilate,  trample  upon,  deface,  jeer  at  or  defy  any 
such  flag,  standard,  color  or  ensign,  shall  be  guilty  of  a 
misdemeanor.  [2675.] 

§  324.    FELONY. 

Every  crime  whirh  may  be  punished  by  death  or  by 
imprisonment  in  the  state  penitentiary  is  a  felony. 
[2253.] 

§  325.    FELONY— PUNISHMENT   WHEN   NOT   FIXED 
BY  STATUTE. 

Every  person  convicted  of  a  felony  for  which  no  pun- 
ishment is  specially  prescribed  by  any  statutory  provi- 
sion in  force  at  the  time  of  the  conviction  and  sentence, 
shall  be  punished  by  imprisonment  in  the  state  peniten- 
tiary for  not  more  than  ten  years,  or  by  a  fine  of  not 
more  than  five  thousand  dollars,  or  by  both.  [2265.] 


184  JUSTICE  OP  THE  PEACE  GUIDE. 

§  326.    FIREARMS. 

Aiming  or  Discharging  Firearms : 
Every  person  who  shall  aim  any  gun,  pistol,  revolver 
or  other  firearm,  whether  loaded  or  not,  at  or  toward 
any  human  being,  or  who  shall  willfully  discharge  any 
firearm,  air-gun  or  other  weapon,  or  throw  any  deadly 
missile  in  a  public  place,  or  in  any  place  where  any  per- 
son might  be  endangered  threby,  although  no  injury  re- 
sult, shall  be  guilty  of  a  misdemeanor. 

Minor  With  Firearms: 

No  minor  under  the  age  of  fourteen  years  shall  handle 
or  have  in  his  possession  or  under  his  control,  except 
while  accompanied  by  or  under  the  immediate  charge  of 
his  parent  or  guardian,  any  firearm  of  any  kind  for 
hunting  or  target  practice  or  for  other  purposes.  Every 
person  violating  any  of  the  foregoing  provisions,  or  aid- 
ing or  knowingly  permitting  any  such  minor  to  violate 
the  same,  shall  be  guilty  of  a  misdemeanor.  [2559.] 

§  327.    FORGERY. 

First  Degree: 

Every  person  who,  with  intent  to  defraud,  shall  forge 
any  writing  or  instrument  by  which  any  claim,  privi- 
lege, right,  obligation  or  authority,  or  any  right  or  title 
to  property,  real  or  personal  is  or  purports  to  be,  or 
upon  the  happening  of  some  future  event  may  be,  evi- 
denced, created,  acknowledged,  transferred,  increased, 
diminished,  encumbered,  defeated,  discharged,  or  af- 
fected, or  any  request  for  the  payment  of  money  or 
delivery  of  property  or  any  assurance  of  money  or  prop- 
erty, or  any  writing  or  instrument  for  the  identification 
of  any  person,  or  any  public  record  or  paper  on  file  in 
any  public  office,  or  any  certified  or  authenticated  copy 
of  such  record  or  paper,  or  any  entry  in  any  public  or 
private  record  of  account,  or  any  judgment,  decree,  or- 
der, mandate,  return,  writ  or  process  of  any  court,  tri- 
bunal, judge,  justice  of  the  peace,  commissioner  or 
magistrate,  or  the  official  return  or  report  of,  or  a  license 
issued  by,  any  public  officer,  or  any  pleading,  demurrer, 
motion,  affidavit,  appearance,  notice,  cost  bill,  statement 
of  facts,  bill  of  exceptions  or  proposed  statement  of 
facts  or  bill  of  exceptions  in  any  action  or  proceeding 
whether  pending  or  not,  or  the  draft  of  any  bill  or  reso- 
lution that  has  been  presented  to  either  house  of  the 


CBIME3.  185 

legislature  of  this  state,  whether  engrossed  or  not,  or 
the  great  seal  of  this  state,  the  seal  of  any  public  offi- 
cer, court,  notary  public  or  corporation,  or  any  public 
seal  authorized  or  recognized  by  the  laws  of  this  or  any 
other  state  or  government,  or  any  impression  of  any 
such  seal;  or  shall  forge  or  counterfeit  any  coin  or 
money  of  any  state  or  government,  or  any  bank  or  treas- 
ury bill,  any  note  or  postage  or  revenue  stamp ;  or  who, 
without  authority  shall  make  or  engrave  any  plate  in 
the  form  or  similitude  of  any  writing,  instrument,  seal, 
coin,  money,  stamp  or  thing  which  may  be  the  subject  of 
forgery,  shall  be  guilty  of  forgery  in  the  first  degree, 
and  shall  be  punished  by  imprisonment  in  the  state  peni- 
tentiary for  not  more  than  twenty  years.  [2583.] 

Second  Degree: 

Every  person  who,  with  intent  to  injure  or  defraud 
r  shall— 

1.  Make  any  false  entry  in  any  public  or  private  rec- 
ord or  account;  or 

2.  Fail  to  make  a  true  entry  of  any  material  matter  in 
any  public  or  private  record  or  account;  or 

3.  Forge  any  letter  or  written  communication  or  copy 
or  purported  copy  thereof,  or  send  or  deliver,  or  con- 
nive at  the  sending  or  delivery  of  any  false  or  fictitious 
telegraph  message  or  copy  or  purported  copy  thereof, 
whereby  or  wherein  the  sentiments,  opinions,  conduct, 
character,  purpose,  property,  interests  or  rights  of  any 
person  shall  be  misrepresented  or  may  be  injuriously 
affected,  or,  knowing  any  such  letter,  communication  or 
message  or  any  copy  or  purported  copy  thereof  to  be 
false,  shall  utter  or  publish  the  same  or  any  copy  or  pur- 
ported copy  thereof  as  true,  shall  be  guilty  of  forgery 
in  the  second  degree,  and  shall  be  punished  by  imprison- 
ment in  the  state  penitentiary  for  not  more  than  five 
years,  or  by  a  fine  of  not  more  than  five  thousand  dol- 
lars.    [2585.] 

§  328.     GAMBLING. 

Conducting  Gambling: 

Every  person  who  shall  open,  conduct,  carry  on  or 
operate,  whether  as  owner,  manager,  agent,  dealer, 
clerk  or  employee,  and  whether  for  hire  or  not,  any 
gambling  game  or  game  of  chance,  played  with  cards, 


186  JUSTICE  OF  THE  PEACE  GUIDE. 

dice,  or  any  other  device,  or  any  scheme  or  device 
whereby  any  money  or  property  or  any  representative 
of  either,  may  be  bet,  wagered  or  hazarded  upon  any 
chance,  or  any  uncertain  or  contingent  event,  shall  be  a 
common  gambler,  and  shall  be  punished  by  imprison- 
ment  in  the  state  penitentiary  for  not  more  than  five 
years.  [2469.] 

Gambling: 

Every  person  who  shall  bet,  wager  or  hazard  any 
money  or  property,  or  any  representative  of  either,  upon 
any  game,  scheme,  or  device,  opened,  conducted,  car- 
ried on  or  operated  in  violation  of  the  last  section  shall 
be  guilty  of  a  misdemeanor.  [2470.] 

Swindling: 

Every  person  who,  by  color,  or  aid  of  any  trick  or 
sleight-of-hand  performance,  or  by  any  fraud  or  fraudu- 
lent scheme,  cards,  dice,  or  device,  shall  win  for  him- 
self or  for  another  any  money  or  property,  or  repre- 
sentative of  either,  shall  be  punished  by  imprisonment 
in  the  state  penitentiary  for  not  more  than  ten  years. 
[2471.] 

Possession  of  Gambling  Devices: 

Every  person  who  shall  have  in  his  possession  or  shall 
permit  to  be  placed  or  kept  in  any  building  or  boat,  or 
part  thereof,  owned,  leased  or  occupied  by  him,  any 
table,  slot  machine,  or  any  other  article,  device  or  ap- 
paratus of  a  kind  commonly  used  for  gambling,  or  oper- 
ated for  the  losing  or  winning  of  any  money  or  property, 
or  any  representative  of  either,  upon  any  chance  or  un- 
certain or  contingent  event,  shall  be  guilty  of  a  gross 
misdemeanor.  [2472.] 

§  329.    HIGHWAYS. 

Disturbance : 

Every  person  who  shall  ride  or  drive  any  horse  upon 
a  public  highway,  in  a  manner  likely  to  endanger  the 
safety  or  life  of  another,  or  on  such  highway  shall  create 
or  participate  in  any  noise,  disturbance  or  other  demon- 
stration calculated  or  intended  to  frighten,  intimidate 
or  disturb  any  person,  shall  be  guilty  of  a  misdemeanor. 
[2534.] 

Throwing  Glass,  etc.,  on  Highways : 

That  any  person  or  persons,  corporation  or  corpora- 
tions who  shall  throw,  place  or  deposit,  in  any  road, 


CRIMES.  187 

street,  alley  or  highway,  in  the  state  of  Washington,  any 
bottle,  bottles,  glass,  glassware,  tacks,  or  nails,  shall  be 
guilty  of  a  misdemeanor,  and  on  conviction  thereof,  shall 
be  fined  not  less  than  $25  nor  more  than  $50,  together 
with  the  costs  and  disbursements  of  the  prosecution,  and 
shall  be  committed  to  the  county  jail  until  such  fine  and 
costs  are  paid.  [2720.] 

§  330.    INTOXICATING  LIQUORS. 

In  Public  Conveyance : 

Every  person  who  shall  drink  any  intoxicating  liquor 
in  any  public  conveyance,  except  in  a  compartment  or 
place  where  sold  or  served  under  the  authority  of  a 
license  lawfully  issued,  shall  be  guilty  of  a  misdemeanor. 
[2693.] 

Every  person  engaged  wholly  or  in  part  in  the  busi- 
-  ness  of  carrying  passengers  for  hire,  and  every  agent, 
servant,  or  employee  of  such  person,  who  shall  know- 
ingly permit  any  person  to  drink  any  intoxicating  liquor 
in  any  public  conveyance,  except  in  the  compartment 
where  such  liquor  is  sold  or  served  under  the  authority 
of  a  license  lawfully  issued,  shall  be  guilty  of  a  misde- 
meanor. [2694.] 

Misrepresenting  Age  of  Liquors: 

Every  person  who,  as  principal,  agent  or  otherwise, 
shall  sell  or  offer  for  sale  any  spirituous  or  distilled  in- 
toxicating liquor  known  as  whisky  (except  Scotch  or 
Irish  whisky)  any  part  of  which  has  not  been  aged  for 
a  period  of  four  years  in  wooden  barrels  or  casks,  or 
who  shall,  as  principal,  agent  or  otherwise,  sell  or  offer 
for  sale  any  malt  liquor  that  has  not  been  aged  for 
a  period  of  more  than  sixty  (60)  days,  or  which  contains 
more  than  eight  (8)  per  cent  alcohol  by  weight,  shall 
be  guilty  of  a  gross  misdemeanor.  [2695.] 

Low  Wines,  etc.: 

Every  person  who,  by  mixing,  compounding  or  dis- 
tilling low  wines  or  ardent  spirits,  or  who,  by  adding 
thereto  any  flavoring  or  other  substance,  shall  produce, 
or  who  shall  sell  or  offer  for  sale  or  have  in  his  posses- 
sion with  intent  to  sell,  any  liquor  known  as  whisky, 
gin  or  brandy  so  produced,  shall  be  guilty  of  a  gross 
misdemeanor.  [2696.] 


188  JUSTICE  OF  THE  PEACE  GUIDE. 

§  331.    MANSLAUGHTER. 

In  any  case  other  than  those  specified  in  sections  140, 
141  and  142  of  this  act,  homicide,  not  being  excusable 
or  justifiable,  is  manslaughter.  [See  Murder.] 

Manslaughter  is  punishable  by  imprisonment  in  the 
state  penitentiary  for  not  more  than  twenty  years,  or 
by  imprisonment  in  the  county  jail  for  not  more  than 
one  year,  or  by  a  fine  of  not  more  than  one  thousand 
dollars,  or  by  both  fine  and  imprisonment.  [2395.] 

§  332.    MISDEMEANOR  DEFINED. 

Every  crime  punishable  by  a  fine  of  not  more  than 
two  hundred  and  fifty  dollars,  or  by  imprisonment  in  a 
county  jail  for  not  more  than  ninety  days,  is  a  misde- 
meanor. Every  other  crime  is  a  gross  misdemeanor. 
[2253.] 

§  333.    MURDER. 

Proof  of  Death: 

No  person  shall  be  convicted  of  murder  or  man- 
slaughter unless  the  death  of  the  person  alleged  to  have 
been  killed  and  the  fact  of  killing  by  the  defendant,  as 
alleged,  are  each  established  as  independent  facts  be- 
yond a  reasonable  doubt.  [2391.] 

Murder  in  the  First  Degree : 

The  killing  of  a  human  being,  unless  it  is  excusable 
or  justifiable,  is  murder  in  the  first  degree  when  com- 
mitted either — 

1.  With  a  premeditated  design  to  effect  the  death  of 
the  person  killed,  or  of  another;  or 

2.  By  an  act  imminently  dangerous  to  others  and 
evincing  a  depraved  mind,  regardless  of  a  human  life, 
without  a  premeditated  design  to  effect  the  death  of  any 
individual;  or 

3.  Without  a  design  to  effect  death,  by  a  person  en- 
gaged in  the  commission  of,  or  in  an  attempt  to  commit, 
or  in  withdrawing  from  the  scene  of,  a  robbery,  rape, 
burglary,  larceny  or  arson  in  the  first  degree;  or 

4.  By  malicious  interfering  or  tampering  with  or  ob- 
structing any  switch,  frog,  rail,  roadbed,  sleeper,  via- 
duct, bridge,  trestle,  culvert,  embankment,  structure  or 
appliance  pertaining  to  or  connected  with  any  railway, 
or  any  engine,  motor  or  car  of  such  railway. 


CRIMES.  189 

Murder  in  the  first  degree  shall  be  punished  by  death 
or  by  imprisonment  in  the  state  penitentiary  for  life,  in 
the  discretion  of  the  court.  [2391.] 

§  334.    MURDER  IN  THE  SECOND  DEGREE. 

The  killing  of  a  human  being,  unless  it  is  excusable  or 
justifiable,  is  murder  in  the  second  degree  when — 

1.  Committed  with  a  design  to  effect  the  death  of  the 
person  killed  or  of  another,  but  without  premeditation; 
or 

2.  When  perpetrated  by  a  person  engaged  in  the  com- 
mission of,  or  in  an  attempt  to  commit,  or  in  withdraw- 
ing from  the  scene  of,  a  felony  other  than  those  enumer- 
ated in  section  140  (above)  of  this  act. 

Murder  in  the  second  degree  shall  be  punished  by  im- 
prisonment in  the  state  penitentiary  for  not  less  than 
ten  years.  [2393.] 

Killing  in  Duel: 

Every  person  who  shall  fight  or  participate  in,  as  sec- 
ond or  assistant,  any  duel  within  this  state,  in  which 
any  person  is  killed,  or  who,  by  previous  appointment 
made  within  this  state,  shall  fight  or  participate  in,  as 
second  or  assistant,  any  duel  out  of  the  state,  in  which 
any  person  is  killed,  shall  be  guilty  of  murder  in  the 
second  degree ;  and,  in  the  latter  case,  may  be  proceeded 
against  in  any  county  in  this  state.  [2394.] 

§  335.    ORCHARD,  INJURY  TO. 

Every  person  who  shall  willfully — 

Enter  without  the  consent  of  the  owner  or  occupant, 
any  orchard,  garden  or  vineyard,  with  intent  to  take, 
injure  or  destroy  anything  there  grown  or  growing; — 
shall  be  guilty  of  a  misdemeanor.  [2659.] 

§  336.    PUBLIC  PEACE,  CRIMES  AGAINST. 
Disturbing  Meeting: 

Every  person  who,  without  [authority]  of  law,  shall 
willfully  disturb  any  assembly  or  meeting  not  unlawful 
in  its  character,  shall  be  guilty  of  a  misdemeanor. 
[2547.] 

Riot  Defined: 

Whenever  three  or  more  persons,  having  assembled 
for  any  purpose,  shall  disturb  the  public  peace  by  using 


190  JUSTICE  OP  THE  PEACE  GUIDE. 

force  or  violence  to  any  other  person,  or  to  property, 
or  shall  threaten  or  attempt  to  commit  such  disturbance, 
or  to  do  any  unlawful  act  by  the  use  of  force  or  violence, 
accompanied  with  the  power  of  immediate  execution  of 
such  threat  or  attempt,  they  shall  be  guilty  of  a  riot. 
£2548.] 

Unlawful  Assembly: 

Whenever  three  or  more  persons  shall  assemble  with 
intent — 

1.  To  commit  any  unlawful  act  by  force;  or 

2.  To  carry  out  any  purpose  in  such  manner  as  to  dis- 
turb the  public  peace;  or, 

3.  Being  assembled,  shall  attempt  or  threaten  any  act 
tending  toward  a  breach  of  the  peace,  or  an  injury  to 
persons  or  property,  or  any  unlawful  act — such  an  as- 
sembly is  unlawful,   and   every  person  participating 
therein  by  his  presence,  aid  or  instigation,  shall  be 
guilty  of  a  gross  misdemeanor.     [2550.] 

Remaining  After  Warning: 

Every  person  who  shall  remain  present  at  the  place 
of  an  unlawful  meeting  after  having  been  warned  to 
disperse  by  a  magistrate  or  public  officer,  unless  as  a 
public  officer  or  at  the  request  of  such  officer  he  is  as- 
sisting in  dispersing  the  same,  or  in  protecting  persons 
or  property  or  in  arresting  offenders,  shall  be  guilty  of 
a  misdemeanor.  [2551.] 

§  337.    SABBATH-BREAKING. 

Defined: 

Every  person  who,  on  the  first  day  of  the  week,  shall 
promote  any  noisy  or  boisterous  sport  or  amusement, 
disturbing  the  peace  of  the  day;  or  who  shall  conduct 
or  carry  on,  or  perform  or  employ  any  labor  about  any 
trade  or  manufacture,  except  livery-stables,  garages  and 
works  of  necessity  or  charity  conducted  in  an  orderly 
manner  so  as  not  to  interfere  with  the  repose  and  re- 
ligious liberty  of  the  community;  or  who  shall  open  any 
drinking  saloon,  or  sell,  offer  or  expose  for  sale,  any 
personal  property,  shall  be  guilty  of  a  misdemeanor: 
Provided,  that  meals,  without  intoxicating  liquors,  may 
be  served  on  the  premises  or  elsewhere  by  caterers,  and 
prepared  tobacco,  milk,  fruit,  confectionery,  news- 
papers, magazines,  medical  and  surgical  appliances  may 


CRIMES.  191 

be  sold  in  a  quiet  and  orderly  manner.  In  works  of 
necessity  or  charity  is  included  whatever  is  needful  dur- 
ing the  day  for  the  good  order  or  health  or  comfort  of 
a  community;  but  keeping  open  a  barber-shop,  shaving 
or  cutting  hair  shall  not  be  deemed  a  work  of  necessity 
or  charity,  and  nothing  in  this  section  shall  be  construed 
to  permit  the  sale  of  uncooked  meats,  groceries,  clothing, 
boots  or  shoes. 

Observing  Another  Day: 

It  shall  be  a  sufficient  defense  to  a  prosecution  for 
performing  work  or  labor  on  the  first  day  of  the  week 
that  the  defendant  uniformly  keeps  another  day  of  the 
week  as  holy  time,  and  that  the  act  complained  of  was 
done  in  such  manner  as  [will]  not  disturb  others  in  the 
observance  of  the  Sabbath.  [2494.] 

Service  of  Legal  Process: 

'  Every  person  who  shall  serve  any  legal  process  on  the 
Sabbath  day,  except  in  case  of  a  breach,  or  apprehended 
breach,  of  the  peace,  or  when  sued  out  for  the  appre- 
hension of  a  person  charged  with  a  crime,  or  where  such 
service  is  expressly  authorized  by  statute,  shall  be  guilty 
of  a  misdemeanor.  [2497.] 

§  338.    RELIGIOUS  MEETING,  DISTURBING. 

Every  person  who  shall  willfully  disturb,  interrupt, 
or  disquiet  any  assemblage  of  people  met  for  religious 
worship — 

1.  By  noisy,  rude,  or  indecent  behavior,  profane  dis- 
course, either  within  the  place  where  such  meeting  is 
held,  or  so  near  it  as  to  disturb  the  order  and  solemnity 
of  the  meeting ;  or, 

2.  By  exhibiting  shows  or  plays,  or  promoting  any 
racing  of  animals,  or  gaming  of  any  description,  or  en- 
gaging in  any  boisterous  or  noisy  amusement;  or, 

3.  By  disturbing  in  any  manner,  without  authority 
of  law  within  one  mile  thereof,  free  passage  along  a 
highway  to  the  place  of  such  meeting,  or  by  maliciously 
cutting  or  otherwise  injuring  or  disturbing  a  harness, 
conveyance,  tent,  or  other  property  belonging  to  any 
person  in  attendance  upon  such  meeting; 

Shall  be  guilty  of  a  misdemeanor.    [2499.] 


192  JUSTICE  OF  THE  PEACE  GUIDE. 

§  339.    VAGRANCY. 

Every — 

1.  Person  who  asks  or  receives  any  compensation, 
gratuity  or  reward  for  practicing  fortune  telling,  palm- 
istry or  clairvoyance;  or, 

2.  Person  who  keeps  a  place  where  lost  or  stolen  prop- 
erty is  concealed ;  or, 

3.  Person  practicing  or  soliciting  prostitution  or  keep- 
ing a  house  of  prostitution;  or, 

4.  Common  drunkards  found  in  any  place  where  in- 
toxicating liquors  are  sold  or  kept  for  sale,  or  in  an  in- 
toxicated condition;  or, 

5.  Common  gambler  found  in  any  place  where  gam- 
bling is  conducted  or  where  gambling  paraphernalia  or 
devices  are  kept;  or, 

6.  Healthy  person  who  solicits  alms;  or, 

7.  Lewd,  disorderly  or  dissolute  person;  or, 

8.  Person  who  wanders  about  the  streets  at  late  or 
unusual  hours  of  the  night  without  any  visible  or  lawful 
business;  or, 

9.  Person  who  lodges  in  any  barn,  shed,  shop,  out- 
house, vessel,  car,  saloon,  or  other  place  not  kept  for 
lodging  purposes  without  the  permission  of  the  owner 
or  person  entitled  to  the  possession  thereof;  or, 

10.  Person  who  lives  or  works  in  a  house  of  prosti- 
tution or  solicits  for  any  prostitute  or  house  of  prostitu- 
tion; or, 

11.  Person   who    solicits   business    for   an   attorney 
around  any  court,  jail,  morgue  or  hospital,  or  elsewhere; 
or 

12.  Habitual    user    of    opium,    morphine,    alkaloid- 
cocaine  or  alpha  or  beta  eucaine,  or  any  derivation,  mix- 
ture or  preparation  of  any  of  them;  or, 

13.  Person  having  no  visible  means  of  support,  who 
does  not  seek  employment,  nor  work  when  employment 
is  offered  to  him;  or, 

14.  Person  who  by  his  own  confession  thereto  or  prior 
conviction  thereof  is  known  to  have  been  guilty  of  lar- 
ceny, burglary,  robbery  or  any  crime  of  which  fraud 
or  an  intent  to  defraud  is  an  element,  who  shall  be 
found  in  any  drinking  saloon  or  cellar,  or  any  public 
dance-hall  or  music-hall  where  intoxicating  liquors  are 
sold,  or  be  found  intoxicated,  or  who,  except  upon  law- 


CRIMES.  193 

ful  business,  shall  go  about  any  dark  street  or  alley  or 
any  residence  section  of  any  city  or  town  in  the  night- 
time, or  loiter  about  any  steamboat  landing,  passenger 
depot,  banking  institution  or  crowded  street,  shop  or 
thoroughfare,  or  any  public  meeting  or  gathering,  or 
place  wheie  people  gather  in  crowds — 

Is  a  vagrant,  and  shall  be  punished  by  imprisonment 
in  the  county  jail  for  not  more  than  six  months,  or  by 
a  fine  of  not  more  than  five  hundred  dollars.  [2688.] 

13 


194  JUSTICE  OF  THE  PEACE  GUIDE. 


CHAPTER  XIX. 
CONSERVING  THE  PEACE. 

§  340.  The  peace  bond. 

§  341.  Complaint  for  peace  bond. 

§  342.  Warrant  on  complaint. 

§  343.  Trial  and  recognizance. 

§  344.  Imprisonment  in  default  of  bond. 

§  345.  Discharge  on  giving  bond. 

§  346.  Appeal  to  superior  court. 

§  3~47.  Bond  effective  on  failure  to  prosecute  appeal. 

§  348.  Judgment  of  appellate  court. 

§  349.  Peace  recognizance  to  be  certified  to  superior  court. 

§  350.  Complainant  to  pay  costs  of  prosecution,  when, 

§  351.  Costs  (when  defendant  may  be  liable). 

§  352.  Summary  recognizance  for  offense  in  presence  of  the  court. 

§  353.  Penalty  on  bond  may  be  remitted. 

§  354.  Hearing  and  transcript  to  superior  court. 

§  355.  Eights  of  surety  on  peace  bond. 

I  356.  Either  singular  or  plural  number. 

The  justice,  as  well  as  certain  other  officers,  is  a  con- 
servator of  the  peace.  This  is  one  of  his  oldest  duties.  He 
has  authority  to  dispel  riotous  assemblies  of  three  or  more 
persons,  and  for  that  purpose  may  summon  aid  to  assist  in 
preserving  the  peace.  When  circumstances  require  that  he 
call  to  his  aid  a  body  of  armed  men,  such  body  is  known  as 
a  "posse  comitatus,"  which  means  literally,  "body  of  the 
county."  Persons  are  required  to  serve  in  the  posse  when 
called  upon,  and  their  services  are  voluntary  in  so  far  that 
they  cannot  recover  compensation  therefor. 

§  340.    THE  PEACE  BOND. 

One  of  the  greatest  and  most  effective  agencies  for  the 
preservation  of  the  peace  is  the  bond  which  binds  a  member 
of  society  for  any  offense  which  he  may  commit  against  the 
person  or  property  of  another.  This  bond  is  issued  upon 
the  complaint  of  a  person  who  has  been  subjected  to  threats, 
as  where  A  threatens  to  kill,  maim  or  wound  B,  or  to  do 
damage  to  B's  property.  The  complainant  swears  before 


CONSERVING  THE  PEACK  195 

the  justice,  who  issues  a  warrant  and  the  matter  is  examined 
into.  If  it  prove  that  A's  person  or  property  are  in  danger 
at  the  hands  of  B,  the  justice  will  require  B  to  give  the 
peace  bond. 

Justices  of  the  peace  shall  have  the  power  to  cause 
all  laws  made  for  the  preservation  of  the  public  peace 
to  be  kept;  and  in  execution  of  that  power  may  require 
persons  to  give  security  to  keep  the  peace,  or  for  their 
good  behavior,  or  both,  in  the  manner  herein  provided. 
[1936.] 

FORM. 

In  Justice's  Court. 

Before  John  E.  Carroll,  Justice  of  the  Peace,  in  and  for 
Seattle  Precinct,  King  County,  State  of  Washing- 
ton. 

No 

State  of  Washington,' 
Plaintiff, 
v. 


Defendant. . 

RECOGNIZANCE  TO  KEEP  THE  PEACE. 

State  of  Washington, 
County  of  King, — ss. 

Whereas,  on  the day  of ,  A.  D.  19 , 

the  above-named  defendant  brought  before 

John  E.  Carroll,  a  Justice  of  the  Peace  aforesaid, 
charged  upon  the  complaint  of with  threaten- 
ing to ,  and  whereas,  upon  the  hearing  and  ex- 
amination of  said  complaint  it  did  appear  that  there  is 

just  cause  to  fear  that  said  will  commit  said 

offense ; 

Now,  therefore,  we,  the  said  ,  as  principal, 

and ,  as  sureties,  do  bind  ourselves  and  our  and 

each  of  our  heirs,  executors  and  administrators,  jointly 
and  severally,  unto  the  state  of  Washington  in  the  sum 
of dollars,  to  be  paid  to  the  state  of  Washington. 

Conditioned  that  if  said shall  well  and  truly 

keep  the  peace  and  be  of  good  behavior  toward  all 
the  people  of  the  state  of  "Washington,  and  especially 


196  JUSTICE  OF  THE  PEACE  GUIDE. 

toward  said for  the  term  of from  and 

after  the  date  hereof,  then  this  obligation  shall  become 
void;  otherwise  it  shall  remain  in  full  force  and  effect. 

In  witness  whereof,  the  parties  hereunto  have  set  their 
hands  and  seals  this day  of ,  A.  D.  19 


Principal. 

[Seal] 
[Seal] 


Sureties  .  [Seal] 

[Seal] 


State  of  Washington, 
County  of  King, — ss. 

,  being  first  duly  sworn,  each  for  himself,  on 

oath  says:  I  am  a  resident  of  the  state  of  Washington; 
I  am  not  a  counselor  or  attorney  at  law,  sheriff,  clerk  of 
the  superior  court,  or  other  officer  of  such  court,  and  am 

worth  the  said the  sum  of dollars,  the 

said the  sum  of   dollars,  the  said 

the  sum  of dollars,  the  said 

the  sum  of dollars,  over  and  above  all  debts  and 

liabilities,  and  exclusive  of  property  exempt  from  execu- 
tion. 


Subscribed  and  sworn  to  before  me  this day  of 

A.D.19 


Justice  of  the  Peace,  Seattle  Precinct,  King  County, 
State  of  Washington. 

No In  Justice's  Court.    Before  John  E.  Carroll, 

Justice  of  the  Peace,  Seattle  Precinct,  King  County, 
State  of  Washington.  The  State  of  Washington,  Plain- 
tiff, v ,  Defendant.  Recognizance  to  Keep  the 

Peace.    Filed  this day  of ,  A.  D.  19 

,  Justice  of  the  Peace. 

The  matter  is  first  brought  before  the  justice  on  the  com- 
plaint of  a  person  threatened  by  another.  The  one  threat- 
ened and  such  witnesses  as  he  may  have  are  examined  by 


CONSERVING  THE  PEACE.  197 

the  justice,  who  reduces  the  complaint  to  writing  and  the 
same  is  sworn  to  by  complainant. 

§  341.  COMPLAINT  FOR  PEACE  BOND. 

Whenever  complaint  shall  be  made  to  any  magistrate 
that  any  person  has  threatened  to  commit  an  offense 
against  the  property  or  person  of  another,  the  magis- 
trate shall  examine  the  complaint  and  any  witness  who 
may  be  produced  on  oath,  and  reduce  such  complaints 
to  writing,  and  the  same  shall  be  subscribed  by  the  com- 
plainant. [1937.] 

§  342.    WARRANT  ON  COMPLAINT. 

If  the  examination  shows  that  the  complainant  is  in  jeop- 
ardy at  the  hands  of  the  defendant,  warrant  of  arrest  issues. 

If,  upon  the  examination,  it  shall  appear  that  there 
is  just  cause  to  fear  that  such  offense  may  be  committed, 
'  the  magistrate  shall  issue  a  warrant  under  his  hand, 
reciting  the  substance  of  the  complaint  and  requiring 
the  officer  to  whom  it  may  be  directed,  forthwith  to  ap- 
prehend the  person  complained  of  and  bring  him  before 
such  magistrate  or  some  other  magistrate,  or  court  hav- 
ing jurisdiction  of  the  cause.  [1939.] 

FOEM. 
WARRANT  TO  KEEP  THE  PEACE. 

The  State  of  Washington, 
County  of , — ss. 

To  the  Sheriff  or  Any  Constable  of  Said  County: 

Whereas,  A  B  has  this  day  complained  in  writing 
under  oath  to  the  undersigned,  one  of  the  justices  of 
the  peace  in  and  for  said  county,  that  he  has  just  cause 
to  fear  and  does  fear  C  D,  late  of  said  county,  will  [here 
state  the  threatened  injury  or  violence,  as  sworn  to]; 
therefore,  in  the  name  of  the  state  of  Washington,  you 
are  commanded  to  apprehend  the  said  C  D  and  bring 
him  forthwith  before  me,  to  show  cause  why  he  should 
not  give  security  to  keep  the  peace  and  be  of  good  be- 
havior toward  all  people  of  this  state,  and  the  said  A  B 
especially,  and  further  to  be  dealt  with  according  to 
law. 

Given  under  my  hand  this   day  of   , 

19 

JP, 

Justice  of  the  Peace. 


193  JUSTICE  OP  THE  PEACE  GUIDE. 

§  343.    TRIAL  AND  RECOGNIZANCE. 

The  defendant  being  arrested,  the  case  comes  for  trial  as 
in  any  other  matter,  and  the  complaint  having  been  found 
justified,  the  justice  binds  the  defendant  over  to  keep  the 
peace  to  all  the  people  of  the  state  and  especially  toward 
the  complainant. 

The  magistrate  before  whom  any  person  is  brought 
upon  charge  of  having  made  threats  as  aforesaid,  shall, 
as  soon  as  may  be,  hear  and  examine  the  complaint. 
And  if  it  shall  appear  that  there  is  just  cause  to  fear 
that  any  such  offense  will  be  committed  by  the  party 
complained  of,  he  shall  be  required  to  enter  into  recogni- 
zance with  sufficient  sureties,  in  such  sum  as  the  magis- 
trate shall  direct,  towards  all  the  people  of  the  state,  and 
especially  towards  the  person  requiring  such  security, 
for  such  term  as  the  magistrate  shall  order,  not  exceed- 
ing one  year,  but  he  shall  not  be  ordered  to  recognize 
for  his  appearance  at  the  superior  court  unless  he  is 
charged  with  some  offense  for  which  he  ought  to  be  held 
to  answer  at  said  court.  [1940.] 

Failure  to  give  proper  security  makes  the  defendant  liable 
to  imprisonment  for  the  length  of  time  for  which  he  was  to 
be  secured. 

§  344.    IMPRISONMENT  IN  DEFAULT  OF  BOND. 

If  the  person  so  ordered  to  recognize  shall  fail  to 
enter  into  such  recognizance,  the  magistrate  shall  com- 
mit hi™  to  the  county  jail  during  the  period  for  which 
he  was  required  to  give  security,  or  until  he  shall  so 
recognize,  stating  in  the  warrant  the  cause  of  commit- 
ment with  the  sum  and  time  for  which  security  was  re- 
quired.  £1941.] 

The  order  to  give  bond  may  be  appealed  in  the  manner 
of  appeals  from  the  justice  court  in  criminal  actions. 

§  345.    DISCHARGE  ON  GIVING  BOND. 

Any  person  committed  for  not  finding  sureties  or  re. 
fusing  to  recognize  as  required  by  the  magistrate  may 
be  discharged  by  any  judge  or  justice  of  the  peace,  on 
giving  such  security  as  was  required.  [1944.] 


CONSERVING  THE  PEACE.  199 

§  846.  APPEAL  TO  SUPERIOR  COURT. 

An  appeal  may  be  taken  from  the  order  of  a  magis- 
trate requiring  a  person  to  give  security  to  keep  the 
peace  or  for  good  behavior.  Such  appeal  shall  be  taken 
in  the  same  manner  and  subject  to  the  same  conditions 
as  appeals  from  justices'  courts  in  criminal  actions,  and 
the  magistrate  may  require  recognizances  of  the  appel- 
lant and  the  witness  as  in  appeals  in  such  criminal  ac- 
tions. [1922.] 

§  347.  BOND  EFFECTIVE  ON  FAILURE  TO  PROSE- 
CUTE APPEAL. 

The  bond  remains  in  full  force  and  effect  where  one  fails 
to  prosecute  his  appeal  to  the  superior  court. 

If  any  party  appealing  from  such  order  of  a  magis- 
trate shall  fail  to  prosecute  his  appeal,  his  recognizance 
-  shall  remain  in  full  force  and  effect  as  to  any  breach 
of  the  condition,  without  an  affirmance  of  the  judgment 
or  order  of  the  magistrate,  and  shall  also  stand  as  se- 
curity for  costs  which  shall  be  ordered  by  the  court  ap- 
pealed to  to  be  paid  by  the  appellant.  [1924.] 

§  348.    JUDGMENT  OF  APPELLATE  COURT. 

The  court  before  which  such  appeal  is  prosecuted  may 
affirm  the  order  of  the  justice  or  discharge  the  appel- 
lant, or  may  require  the  appellant  to  enter  into  a  new 
recognizance,  with  sufficient  sureties,  in  such  sum  and 
for  such  time  as  the  court  shall  think  proper,  and  may 
also  make  such  order  in  relation  to  the  costs  of  prosecu- 
tion as  may  be  deemed  just  and  reasonable.  [1923.] 

§  349.  PEACE  RECOGNIZANCE  TO  BE  CERTIFIED  TO 
SUPERIOR  COURT. 

Every  recognizance  taken  pursuant  to  the  foregoing 
provisions  shall  be  transmitted  to  the  superior  court  for 
the  county  within  ten  days,  and  shall  there  be  filed  of 
record  by  the  clerk.  [1945.] 

It  may  be  that  when  the  magistrate  comes  to  examine  the 
complaint  on  which  a  peace  bond  is  prayed  for,  he  will  be 
obliged  to  dismiss  the  action  as  one  that  is  frivolous  or  else 
was  inspired  by  malice  and  the  whole  action  unfounded.  In 


200 

that  case  the  party  complaining  will  have  to  pay  all  the  costs 
of  prosecution,  and  may  be  committed  to  jail  until  the  same 
are  paid. 

§  350.     COMPLAINANT  TO  PAY  COSTS  OF  PROSECU- 
TION, WHEN. 

If  upon  examination,  it  shall  appear  that  there  is  not 
just  cause  to  fear  that  any  such  offense  will  be  com- 
mitted by  the  party  complained  of,  he  shall  be  forthwith 
discharged;  and  if  the  magistrate  shall  deem  the  com- 
plaint unfounded,  frivolous  or  malicious,  he  may  order 
the  complainant  to  pay  the  costs  of  prosecution,  who 
shall  thereupon  be  answerable  to  the  magistrate  and  the 
officers  for  their  fees,  as  for  his  own  debt.  [1942.] 

§  351.  COSTS  (WHEN  DEFENDANT  MAY  BE  LIABLE) . 
When  no  order  respecting  the  costs  is  made  by  the 
magistrate,  they  shall  be  allowed  and  paid  in  the  same 
manner  as  costs  before  justices  in  criminal  prosecutions ; 
but  in  all  cases  where  a  person  is  required  to  give  good 
security  for  the  peace,  or  for  his  good  behavior,  the 
magistrate  may  further  order  that  the  costs  of  prosecu- 
tion, or  any  part  thereof,  shall  be  paid  by  such  person, 
who  shall  stand  committed  until  such  costs  are  paid,  or 
he  is  otherwise  legally  discharged.  [1943.] 

§  352.  SUMMARY  RECOGNIZANCE  FOR  OFFENSE  IN 
PRESENCE  OF  THE  COURT. 

A  disturbance  of  the  peace  in  the  presence  of  the  justice, 
as  a  riot  or  affray  in  the  courtroom,  may  be  punished  by  re- 
quiring recognizance  without  further  proof  or  process. 

Every  person  who  shall,  in  the  presence  of  any  magis- 
trate, or  before  any  judge  of  a  court  of  record,  make  an 
affray,  or  threaten  to  kill  or  beat  another,  or  to  commit 
any  violence  or  outrage  against  his  person  or  property, 
and  every  person  who,  in  the  presence  of  such  judge  or 
magistrate,  shall  contend  with  hot  and  angry  words,  to 
the  disturbance  of  the  peace,  may  be  ordered,  without 
process  or  other  proof,  to  recognize  for  keeping  the 
peace  or  being  of  good  behavior  for  a  term  not  exceed- 
ing three  months,  and  in  case  of  refusal  may  be  com- 
mitted as  before  directed.  [1946.] 


CONSERVING  THE  PEACE.  201 

§  353.     PENALTY  ON  BOND  MAY  BE  REMITTED. 

Whenever  upon  a  suit  brought  on  any  such  recogni- 
zance, the  penalty  thereof  shall  be  adjudged  forfeited, 
the  court  may  remit  such  portion  of  the  penalty,  on 
the  petition  of  any  defendant,  as  the  circumstances  of 
the  case  shall  render  just  and  reasonable.  [1947.] 

§  354.    HEARING   AND    TRANSCRIPT   TO    SUPERIOR 
COURT. 

It  shall  be  the  duty  of  every  magistrate  examining  a 
person  charged  with  an  offense,  or  with  an  intention  to 
commit  an  offense,  to  examine  all  the  witnesses  he  shall 
deem  material,  and  reduce  their  testimony  to  writing,  a 
copy  of  which,  whether  the  accused  is  discharged,  com- 
mitted, or  held  to  bail,  or  shall  take  an  appeal,  he  shall 
transmit  to  the  clerk  of  the  court  having  jurisdiction  of 
the  offense.  [1938.] 

§  355.    RIGHTS  OF  SURETY  ON  PEACE  BOND. 

The  surety  on  a  peace  bond  may  surrender  the  principal, 
and  after  such  surrender  the  surety  is  not  further  liable. 

Any  surety  in  recognizance  to  keep  the  peace,  or  for 
good  behavior  or  both,  shall  have  the  same  authority 
and  right  to  take  and  surrender  his  principal  as  if  he 
had  been  bail  for  him  in  a  civil  cause,  and  upon  such  sur- 
render, shall  be  discharged  and  exempt  from  all  lia- 
bility for  any  act  of  the  principal,  subsequent  to  such 
surrender,  which  would  be  a  breach  of  the  condition  of 
the  recognizance,  and  the  person  so  surrendered  may 
recognize  anew,  with  sufficient  sureties,  before  any  jus- 
tice of  the  peace,  for  the  residue  of  the  term,  and  there- 
upon shall  be  discharged.  [1948.] 

§  356.    EITHER  SINGULAR  OR  PLURAL  NUMBER. 

Any  word  used  in  this  act  in  the  singular  or  plural 
number  shall,  whenever  it  is  necessary  to  give  effect  and 
force  to  the  same,  according  to  the  true  intent  thereof, 
be  taken  and  construed  to  mean  either. 


202  JUSTICE  OP  THE  PEACE  GUIDE. 


CHAPTER  XX. 
CONTEMPT  PROCEEDINGS. 

§  357.  Persons  guilty  of  contempt. 

§  358.  Punishment. 

§  359.  Form  of  warrant. 

§  360.  Form  of  judgment. 

§  361.  Contempt  in  presence  of  the  court. 

§  362.  Cause  to  be  heard. 

§  363.  Commitment  of  defendant. 

The  official  proceedings  before  a  justice  of  the  peace  are 
to  be  conducted  with  dignity,  and  the  administration  of  jus- 
tice even  in  this  small  court  must  not  be  interrupted  by  in- 
solent behavior.  For  the  preservation  of  proper  decorum, 
the  justice  has  authority  to  punish  those  who  infringe  this 
rule. 

§  357.    PERSONS  GUILTY  OF  CONTEMPT. 

In  the  following  cases,  and  no  others,  a  justice  of  the 
peace  may  punish  for  contempt: 

1.  Persons  guilty  of  disorderly,  contemptuous  and  in- 
solent behavior  towards  such  justice  while  engaged  in 
the  trial  of  a  cause,  or  in  rendering  judgment,  or  in  any 
judicial  proceedings,  which  tend  to  interrupt  such  pro- 
ceedings, or  impair  the  respect  due  to  his  authority. 

2.  Persons  guilty  of  any  breach  of  the  peace,  noise  or 
disturbance,  tending  to  interrupt  the  official  proceedings 
of  such  justice. 

3.  Persons  guilty  of  resistance  or  disobedience  to  any 
lawful  order  or  process  made  or  issued  by  him.    [1891.] 

§  358.    PUNISHMENT. 

Punishment  for  contempt  may  be  by  fine,  not  exceed- 
ing twenty-five  dollars,  or  by  imprisonment  in  the 
county  jail  not  exceeding  two  days,  at  the  discretion 
of  the  justice,  unless  otherwise  provided  by  statute. 
[1892.] 


CONTEMPT  PROCEEDINGS.  203 

§  359.     FORM  OF  WARRANT. 

The  following  is  the  form  of  warrant  for  contempt: 

State  of  Washington, 
County, — ss. 

To  the  Sheriff  or  Any  Constable  of  Said  County: 

In  the  name  of  the  state  of  Washington,  you  are 
hereby  commanded  to  apprehend  A  B  and  bring  him  be- 
fore J  P,  one  of  the  justices  of  the  peace  of  said  county, 
at  his  office  in  said  county,  to  show  cause  why  he  should 
not  be  convicted  of  a  contempt  alleged  to  have  been 

committed  on  the day  of ,  A.  D.  19 , 

before  the  said  justice,  while  engaged  as  a  justice  of  the 
peace  in  a  judicial  proceeding. 
Dated  this day  of ,  A.  D.  19 

JP, 

Justice  of  the  Peace.     [1895] 

§  360.    FORM  OF  JUDGMENT. 

The  judgment  should  be  entered  in  the  docket  in  the 
following  form: 

Upon  the  conviction  of  any  person  for  contempt,  an 
entry  thereof  shall  be  made  in  the  docket  of  such  jus- 
tice, stating  the  particular  circumstances  of  the  offense, 
and  the  judgment  rendered  thereon,  and  may  be  in  the 
following  form: 

State  of  Washington, 
, County, — ss. 

Whereas,  on  the day  of ,  A.  D.  19 , 

while  the  undersigned,  one  of  the  justices  of  the  peace 
for  said  county,  was  engaged  in  the  trial  of  an  action 
between  C  D,  plaintiff,  and  E  F,  defendant,  in  said 
county,  A  B,  of  the  said  county,  did  interrupt  the  said 
proceedings  and  impair  the  respect  due  to  the  authority 
of  the  undersigned,  by  [here  describe  the  cause  particu- 
larly]. And  whereas,  the  said  A  B  was  thereupon  re- 
quired by  the  undersigned  to  answer  for  the  said  con- 
tempt and  show  cause  why  he  should  not  be  convicted 
thereof.  And  whereas,  the  said  A  B  did  not  show  cause 
against  the  said  charge — be  it  therefore  ordered  that 
the  said  A  B  is  adjudged  to  be  guilty  and  is  convicted 
of  the  contempt  aforesaid,  and  is  adjudged  by  the  un- 


204  JUSTICE  OF  THE  PEACE  GUIDE. 

dersigned  to  pay  a  fine  of dollars  [or  be  impris- 
oned, etc.]. 
Dated  this  ....  day  of ,  A.  D.  19 

JP, 

Justice  of  the  Peace.    [1896.] 

§  361.  CONTEMPT  IN  PRESENCE  OF  THE  COURT. 

If  the  offender  be  present  he  may  be  summarily  ar- 
raigned by  the  justice,  and  proceeded  against  in  the 
same  manner  as  if  a  warrant  had  been  previously  is- 
sued, and  the  offender  arrested  thereon.  [1894.] 

§  362.     CAUSE  TO  BE  HEARD. 

No  person  shall  be  punished  for  a  contempt  before  a 
justice  of  the  peace,  until  an  opportunity  shall  have 
been  given  to  him  to  be  heard  in  his  defense;  and  for 
that  purpose  the  justice  may  issue  his  warrant  to  bring 
the  offender  before  him.  [1893.] 

§  363.     COMMITMENT  OF  DEFENDANT. 

If  any  person  convicted  of  a  contempt  be  adjudged  to 
be  imprisoned,  a  warrant  of  commitment  shall  be  issued 
by  the  justice.  If  he  be  adjudged  to  pay  a  fine,  a 
process  may  be  issued  to  collect  the  same ;  it  shall  forth- 
with be  paid  by  the  justice  into  the  county  treasury. 
£1897.] 


JUSTICE  OP  THE  PEACE  AS  POLICE  JUDGE,  205 


CHAPTER  XXI. 
JUSTICE  OF  THE  PEACE  AS  POLICE  JUDGE. 

I  364.  Establishment  of  police  court. 

8  365.  Jurisdiction  and  duties  of  police  judge. 

§  366.  General  powers. 

§  367.  Police  powers  of  justices. 

§  368.  In  cities  of  the  third  class. 

§  269.  In  cities  of  the  fourth  class. 

i  370.  In  cities  of  the  first  class. 

Cities  of  the  first  and  second  class  have  police  judges 
whose  duty  it  is  to  enforce  the  ordinances  of  such  cities  and 
punish  misdemeanors. 

§  364.    ESTABLISHMENT  OF  POLICE  COURT. 

A  police  court  is  hereby  established  in  such  city, 
which  court  shall  always  be  open,  except  upon  non ju- 
dicial days,  and  upon  such  days  may  transact  criminal 
business  only.  [7656.] 

The  general  duties  of  such  police  judge  are  defined  as 
follows : 

§  365.    JURISDICTION     AND     DUTEES     OF     POLICE 
JUDGE. 

The  police  court  of  such  city  shall  have  jurisdiction 
of  the  following  public  offenses  committed  within  such 
city: — 

1.  Petit  larceny; 

2.  Assault  or  battery  not  charged  to  have  been  com- 
mitted upon  a  public  officer  in  the  discharge  of  his  offi- 
cial duty  or  with  intent  to  Mil; 

3.  Breaches  of  the  peace,  riots,  affrays,  committing 
willful  injury  to  property,  and  all  misdemeanors  pun- 
ishable by  fine  not  exceeding  five  hundred  dollars  or  by 
imprisonment  not  exceeding  six  months,  or  by  both 
such  fine  and  imprisonment; 

4.  Of  proceedings  respecting  vagrants,  lond  or  dis- 
orderly persons; 


206  JUSTICE   OF   THE   PEACE   GUIDE. 

5.  Of  all  proceedings  for  violation  of  any  ordinance 
of  said  city,  both  civil  and  criminal;  of  any  and  all 
suits  to  recover  taxes,  general  or  special,  levied  in  such 
city  for  city  purposes,  and  all  suits  to  recover  any 
assessment  levied  in  such  city  for  the  improvement  of 
streets,  avenues,  levees,  sidewalks  and  public  squares, 
and  for  the  opening  or  laying  out  of  the  same  when  the 
amount  of  said  tax  or  assessment  sought  to  be  collected 
against  the  person,  firm,  or  corporation  assessed  is  less 
than  three  hundred  dollars;  provided,  no  lien  upon  the 
property  taxed  or  assessed  for  the  nonpayment  of  the 
taxes  or  assessment  is  sought  to  be  foreclosed  by  said 
suit; 

6.  Of  an  action  for  the  collection  of  money  due  to 
such  city,  or  from  the  city  to  any  person,  firm  or  cor- 
poration, when  the  amount  sought  to  be  collected  is  less 
than  three  hundred  dollars; 

7.  Of  an  action  for  the  breach  or  violation  of  any  of- 
ficial bond  given  by  any  city  officer,  and  for  the  breach 
of  any  contract,  and  any  action  for  damages  in  which 
the  city  is  a  party,  or  is  in  any  way  interested,  and 
on  all  forfeited  recognizances  given  to  or  for  the  bene- 
fit or  in  behalf  of  such  city,  and  upon  all  bonds  given 
upon  any  appeal  taken  from  the  judgment  of  said 
court  in  any  action  above   named   when   the   amount 
claimed  exclusive  of  cost,  is  less  than  three  hundred  dol- 
lars; 

8.  Of  an  action  for  the  recovery  of  personal  property 
belonging  to  the  city,  when  the  value  of  the  property 
exclusive  of  the  damages  for  the  taking  or  detention  is 
less  than  three  hundred  dollars; 

9.  Of  an  action  for  the  collection  of  any  license  re- 
quired by  any  ordinance  of  the  city: 

10.  The  police  court  shall  have  exclusive  jurisdiction 
of  all  proceedings  mentioned  in  this  section,  and  no 
justice  of  the  peace  in  such  city  shall  have  power  to 
try  and  decide  any  cases  of  the  classes  mentioned  in 
said  section;  provided,  that  any  justice  of  the  peace 
of  such  city,  who  may  be  designated  in  writing  by  the 
mayor  or  president  of  the  city  council  thereof  for  the 
purpose,  shall  have  power  to  preside  in  and  to  hold  a 
police  judge's  court  of  said  city  in  the  cases  in  which 
the  police  judge  is  a  party,  or  in  which  he  is  directly 
interested,  or  when  the  judge  is  related  to  either  party 
by  consanguinity  or  affinity  within  the  third  degree; 


JUSTICE  OF  THE  PEACE  AS  POLICE  JUDGE.  207 

and  also  in  case  of  the  sickness  or  temporary  absence 
of  the  judge,  or  his  inability  to  act  from  any  cause; 
and  in  all  such  cases,  and  during  such  sickness,  tem- 
porary absence,  or  inability,  the  justice  so  designated 
shall  act  as  police  judge,  and  shall  have  and  exercise 
all  the  powers,  jurisdiction,  and  authority  which  are  or 
may  be  by  law  conferred  upon  said  court  or  judge. 
[7657.] 

The  police  judge  is  further  empowered  to  hear  cases  which 
are  properly  triable  in  the  superior  court,  and  may  commit 
and  hold  the  offender  to  bail  for  his  appearance  in  the 
proper  court. 

§  366.     GENERAL  POWERS. 

The  judge  of  said  court  shall  also  have  power  to  hear 
cases  for  examination,  and  may  commit  and  hold  the 
r  offender  for  trial  in  the  proper  court,  and  may  try, 
'  condemn,  or  acquit,  and  carry  his  judgment  into  execu- 
tion, as  the  case  may  require,  according  to  law;  and  to 
punish  persons  guilty  of  contempt  of  court,  and  shall 
have  power  to  issue  warrants  of  arrest  in  cases  of  a 
criminal  prosecution  for  the  violation  of  a  city  ordi- 
nance, as  well  as  in  case  of  the  violation  of  the  criminal 
law  of  the  state;  also  all  subpoenas,  and  all  other  pro- 
cesses necessary  to  the  full  and  proper  exercise  of  his 
powers  and  jurisdiction  in  all  criminal  trials  before 
the  police  judge  for  the  violation  of  the  criminal  law 
of  the  state,  made  triable  before  such  court;  the  de- 
fendant shall  be  entitled,  if  demanded  by  him,  to  a 
jury  trial,  but  a  trial  by  jury  may  be  waived  by  the 
defendant  in  all  such  cases,  and  upon  such  waiver 
the  court  shall  proceed  and  try  the  case.  [7658.] 

§  367.    POLICE  POWERS  OP  JUSTICES. 

The  justices  of  the  peace  in  and  for  the  township  em- 
bracing such  city  shall  have  the  same  powers  as  the 
same  officers  in  any  justice  court  of  the  county,  and  shall 
have  and  may  exercise  like  powers  and  authority; 
provided,  however,  that  no  justice  of  the  peace  in  such 
city  shall  have  power  to  conduct  or  try  and  decide 
any  proceedings  or  cases  of  the  classes  mentioned  in 
section  two  hundred  and  six  of  this  act,  [probably 
section  7657]  but  nothing  in  this  section  shall  be  con- 
strued to  prevent  any  of  the  justices  in  said  city  from 
acting  as  police  judge.  [7666.] 


208  JUSTICE   OF    THE   PEACE   GUIDE. 

§  363.    IN  CITIES  OF  THE  THIRD  CLASS. 

There  shall  also  be  elected,  as  hereinafter  specified, 
a  police  justice,  or  so  many  as  the  council  may  deem 
necessary.  The  justice  (or  justices  so  elected)  may  be 
selected  from  the  justices  of  the  peace  duly  elected  un- 
der the  laws  of  the  state  of  Washington,  and  while 
acting  in  city  or  town  matters  may  hold  office  for  that 
purpose  anywhere  within  the  city  or  town.  Such  jus- 
tices of  the  peace  shall  have  jurisdiction  over  all  offenses 
defined  by  any  ordinance  of  the  city  or  town,  and  all 
other  actions  brought  to  enforce  or  recover  any  penalty 
or  forfeiture  declared  or  given  by  any  such  ordinance, 
and  full  power  to  hear  and  determine  all  causes,  civil 
or  criminal,  arising  under  such  ordinance,  and  to  pro- 
nounce judgment  in  accordance  therewith.  All  civil 
or  criminal  proceedings  before  such  justice  of  the  peace, 
under  and  by  authority  of  this  chapter,  shall  be  gov- 
erned and  regulated  by  the  general  laws  of  the  state 
relating  to  justices  of  the  peace  and  to  their  practices 
and  jurisdiction,  and  shall  be  subject  to  review  in  the 
court  of  the  proper  county  by  certiorari  or  appeal, 
the  same  as  in  other  cases.  All  officers  elected  by  the 
council  are  subject  to  removal  by  that  body  at  any 
time,  for  cause  deemed  sufficient.  [7700.] 

§  369.    IN  CITIES  OF  THE  FOURTH  CLASS. 

There  shall  also  be  elected,  as  hereinafter  specified, 
a  police  justice,  or  so  many  as  the  council  may  deem 
necessary.  The  justice  or  justices  so  elected  may  be 
selected  from  the  justices  of  the  peace  duly  elected 
under  the  laws  of  the  state  of  Washington,  and  while 
acting  in  town  matters  may  hold  office  for  that  purpose 
anywhere  within  the  town.  Such  justices  of  the  peace 
shall  have  jurisdiction  over  all  offenses  defined  by  any 
ordinance  of  the  town,  and  all  other  actions  brought 
to  enforce  or  recover  any  penalty  or  forfeiture  de- 
clared or  given  by  any  such  ordinance,  and  full  power 
and  authority  to  hear  and  determine  all  cases,  civil  or 
criminal,  arising  under  such  ordinance,  and  to  pro- 
nounce judgment  in  accordance  therewith.  All  civil  or 
criminal  proceedings  before  such  police  justice,  under 
and  by  authority  of  this  act,  shall  be  governed  and 
regulated  by  the  general  laws  of  the  state  relating  to 
justices  of  the  peace  and  to  their  practices  and  jurisdic- 
tion, and  shall  be  subject  to  review  in  the  court  of  the 
proper  district  by  certiorari  or  appeal  the  same  as  in 


JUSTICE  OP  THE  PEACE  AS  POLICE  JUDGE.  209 

other  cases.  All  officers  elected  by  the  council  are  sub- 
ject to  removal  by  that  body  at  any  time  for  cause 
deemed  sufficient.  [7748.] 

§  370.    IN  CITIES  OF  THE  FIRST  CLASS. 

Within  ten  days  after  such  election  (that  is,  the 
general  election)  the  mayor  of  the  city  shall  appoint 
one  of  the  justices  (of  the  peace)  so  elected  the  police 
justice  or  police  judge  of  such  city,  who  shall  before 
entering  upon  the  duties  of  his  office  as  police  judge, 
give  such  additional  bond  for  the  faithful  performance 
of  his  duties  as  the  city  council  may  by  ordinance  direct. 
[7520.] 

14 


210  JUSTICE  OF  THE  PEACE  GUIDE. 


CHAPTER  XXII. 
JUSTICE  OF  THE  PEACE  AS  NOTARY. 

§  371.    Justice  of  the  peace  as  notary. 
§  372.     General  form  of  acknowledgment. 

§  371.  JUSTICE  OF  THE  PEACE  AS  NOTARY. 

The  justice  of  the  peace  is  also  a  notary  public  for  all 
purposes  except  that  of  protesting  negotiable  instruments. 

The  justice  may: 

1.  Take  and  certify  the  proof  and  acknowledgment 
of  a  conveyance  of  real  property,  or  any  other  written 
instrument  authorized  or  required  to  be  proved  or 
acknowledged ; 

2.  Administer  oaths  and  affirmations  generally. 

3.  Take  or  certify  an  affidavit  or  deposition  to  be 
used  in  any  court  of  justice  or  tribunal  of  this  state. 

§  372.  GENERAL  FORM  OF  ACKNOWLEDGMENT. 

A  certificate  of  acknowledgment  substantially  in  the  fol- 
lowing form    shall  be  sufficient: 

State  of  Washington, 
County  of  , — ss. 

I  [here  give  name  of  officer  and  official  title]  do  here- 
by certify  that  on  this day  of  ,  19 , 

personally  appeared  before  me  [names  of  parties  ap- 
pearing, and  if  one  is  a  wife,  add  "his  wife"]  to  me 
known  to  be  the  individual  or  individuals  described 
in  and  who  executed  the  within  instrument  and  acknowl- 
edged that  he  [she  or  they]  signed  and  sealed  the 
same  as  his  [her  or  their]  free  and  voluntary  act  and 
deed,  for  the  uses  and  purposes  therein  mentioned. 

Given  under  my  hand  and  official  seal  this day  of 

, A.D.19 

[Signature  of  officer.] 


JUSTICE  OF  THE  PEACE  AS  COBONEB.  211 

• 

CHAPTER  XXIII. 
JUSTICE  OF  THE  PEACE  AS  CORONER. 

The  law  provides  that  under  certain  circumstances  the 
justice  of  the  peace  shall  discharge  the  duties  of  coroner. 
The  coroner  is  a  county  officer,  whose  duty  it  is  to  inquire 
into  the  causes  and  manners  of  those  deaths  which  shall 
come  under  their  supervision.  In  the  absence  or  incapacity 
of  the  sheriff  of  the  county,  the  coroner  performs  the  duties 
of  that  office  with  its  powers  and  responsibilities;  his  bond 
binding  him  for  those  duties  in  the  same  way  that  the  sheriff 
is  bound. 

When  there  is  reason  to  believe  that  the  death  of  a  per- 
son'has  been  caused  by  unlawful  means,  or  if  the  cause  of 
death  be  unknown,  the  coroner,  upon  such  information, 
is  required  to  summon  a  jury  of  six  men,  qualified  to  serve 
as  jurors,  who  shall  inquire  into  the  death  of  the  decedent. 
The  inquest  shall  take  place  at  the  place  where  the  body 
lies. 

He  may  also  issue  subpoenas  to  compel  the  attendance 
of  witnesses,  whom  he  will  examine  under  oath.  The  wit- 
ness may  be  punished  for  refusing  to  obey  this  summons 
just  as  he  would  be  if  he  disobeyed  the  summons  of  the 
justice  of  the  peace. 

The  jurors  render  their  verdict  in  writing;  the  verdict 
showing: 

Who  the  person  killed  is; 

Where,  when,  by  what  means  he  came  to  death; 

Who  is  guilty  of  his  death,  if  any; 

And  whether  the  death  be  caused  by  criminal  means  of 
another. 

If  the  jury  find  a  person  guilty  of  causing  the  unlawful 
death,  the  same  shall  be  arrested  upon  the  coroner's  war- 
rant, which  shall  be  served  in  all  respects  as  upon  the  war- 
rant of  arrest. 


212  JUSTICE  OP  THE  PEACE  GUIDE. 

Any  property  belonging  to  the  deceased  must  be  turned 
over  to  the  county  treasurer  within  thirty  days  after  the 
inquest,  unless  claimed  in  the  meantime  by  the  legal  repre- 
sentatives of  the  deceased. 

If  the  office  of  coroner  be  vacant,  or  he  be  absent 
or  unable  to  attend,  the  duties  of  his  office  may  be  per- 
formed by  any  justice  of  the  peace  in  the  county,  with 
the  like  authority,  and  subject  to  the  same  obligations 
and  penalties  as  the  coroner.  [4029.] 


JUSTICE  OF  THE  PEACE  AS  DEPUTY  STATE  FIBB  MARSHAL*      213 


CHAPTER  XXIV. 

JUSTICE  OF  THE  PEACE  AS  DEPUTY  STATE  FIRE 

MARSHAL. 

The  chief  of  the  fire  department  of  every  city  having 
a  paid  or  organized  volunteer  fire  department,  the  city 
marshal  or  chief  of  police  of  every  incorporated  town 
or  city  having  no  paid  or  organized  volunteer  fire  de- 
partment, and  the  justices  of  the  peace  outside  of  in- 
corporated towns  or  cities  shall  be  ex-offieio  deputy 
state  fire  marshals  within  their  respective  jurisdictions. 
They  shall  investigate  the  cause,  origin,  and  circum- 
stances of  every  fire  occurring  within  their  respective 
jurisdictions  by  which  property  has  been  destroyed, 
-  and  especially  making  investigation  as  to  whether  such 
fire  was  the  result  of  carelessness  or  design.  Such  in- 
vestigation shall  be  begun  within  two  days,  not  includ- 
ing Sunday,  of  the  occurrence  of  such  fire,  and  the  fire 
marshal  shall  have  the  right  to  supervise  and  direct 
such  investigation  whenever  he  deems  it  expedient  or 
necessary.  The  officer  making  such  investigation  of 
fires  shall  forthwith  notify  said  fire  marshal,  and  shall 
within  one  week  of  the  occurrence  of  the  fire,  furnish  to 
the  said  fire  marshal  a  written  statement  of  all  the 
facts  relating  to  the  cause  and  origin  of  the  fire,  the 
value  of  the  property  destroyed  and  the  amount  of  in- 
surance, if  any  carried  thereon,  and  such  other  infor- 
mation as  may  be  called  for  by  the  blanks  provided  by 
the  said  fire  marshal.  The  state  fire  marshal  shall  keep 
in  his  office  a  record  of  all  fires  occurring  in  the  state, 
together  with  all  facts,  statistics  and  circumstances,  in- 
cluding the  origin  of  the  fires,  which  may  be  deter- 
mined by  the  investigations  provided  by  this  chapter; 
such  record  shall  at  all  times  be  open  to  the  public  in- 
spection. [6071.] 


214  JUSTICE  OF  THE  PEACE  GUIDE. 


CHAPTER  XXV. 
JUSTICES'  OFFICE  EQUIPMENT,  FEES,  ETC. 

§  373.  Clerk  and  assistance. 

§  374.  The  justice's  docket. 

§  375.  Fees  of  justice  of  the  peace. 

§  376.  Fees  of  salaried  justices. 

S  377.  Other  fees  not  to  be  collected. 

§  378.  Fees  to  be  paid  in  advance. 

§  379.  Salary  of  justice  pro  tern. 

§  380.  Hovr  justices'  salaries  are  paid. 

§  381.  Fee-book  and  accounts. 

§  382.  Salary  in  city  of  more  than  five  thousand. 

§  383.  Salary  in  cities  of  over  thirty-five  thousand, 

§  384.  Moneys  to  be  paid  to  county  treasurer. 

§  373.    CLERK  AND  ASSISTANCE. 

The  justice's  court  in  first  and  second  class  cities  is  al- 
lowed a  clerk  to  assist  him  with  his  work,  and  such  other 
help  as  he  may  need  for  the  transaction  of  business.  The 
county  commissioners  also  provide  him  with  stationery, 
books  and  blanks. 

The  board  of  county  commissioners  shall  allow  each 
justice  in  cities  of  the  first  class,  and  may  allow  each 
justice  in  cities  of  the  second  class,  one  clerk,  at  such 
salary  as  they  may  designate;  said  clerk  to  be  paid  in 
the  same  manner  and  at  the  same  time  as  the  said  jus- 
tices. The  board  of  county  commissioners  may  furnish 
for  the  use  of  each  of  the  justices  provided  for  in  this 
act  a  suitable  office  room;  and  also,  they  shall  furnish 
to  each  of  the  said  justices  and  constables  all  neces- 
sary books,  blanks  and  stationery  for  conducting  the 
public  business  of  his  office;  said  office  room,  books, 
blanks  and  stationery  to  be  paid  for  on  the  warrant  of 
the  auditor  out  of  the  general  fund  of  the  county. 
[6547.] 

§  374.    THE  JUSTICE'S  DOCKET. 

The  docket  is  the  story  of  the  action  as  inscribed  by  the 
justice  of  the  peace  and  is  the  most  important  book  of  the 
office.  In  it  every  step  of  the  proceedings  is  recorded. 


JUSTICES'  OFFICE  EQUIPMENT,  FEES,  ETC.  215 

Every  justice  shall  keep  a  docket  in  a  well-bound 
book  in  which  he  shall  enter: 

1.  The  title  of  all  actions  commenced  before  him. 

2.  The  object  of  the  action  or  proceeding,  and  if  a 
sum  of  money  be  claimed,  the  amount  of  the  demand. 

3.  The  date  of  the  notice  and  the  time  of  its  return; 
and  if  an  order  to  arrest  the  defendant  be  made,  the 
statement  of  the  facts  on  which  the  order  is  issued. 

4.  The  time  when  the  parties,  or  either  of  them,  ap- 
pear, or  their  nonappearance,  if  default  be  made. 

5.  A  brief  statement  of  the  nature  of  the  plaintiff's 
demand,  and  the  amount  claimed;  and  if  any  setoff  be 
pleaded,   a   similar   statement   of  the   setoff,   and   the 
amount  estimated,  and  every  motion,  rule,  order,  and 
exception  with  the  decision  of  the  court  thereon. 

6.  Every  continuance,  stating  at  whose  request,  and 
for  what  time. 

7.  The  demand  for  a  trial  by  jury,  when  the  same  is 
made,  and  by  whom  made,  the  order  for  the  jury,  and 
the  time  appointed  for  the  trial  and  return  of  the  jury. 

8.  The  names  of  the  jury  who  appear  and  are  sworn; 
the  names  of  the  witnesses  sworn,  and  at  whose  request. 

9.  The  verdict  of  the  jury,  and  when  received ;  and  if 
the  jury  disagree  and  are  discharged,  the  fact  of  such 
disagreement  and  discharge. 

10.  The  judgment  of  the  court,  and  the  time  when  ren- 
dered. 

11.  The  time  of  issuing  execution,  and  the  name  of  the 
officer  to  whom  delivered,  and  an  account  of  the  debt 
and  costs,  and  the  fees  due  to  each  person  separately. 

12.  The  fact  of  an  appeal  having  been  made  and  al- 
lowed, and  the  time  when. 

13.  Satisfaction  of  the  judgment,  or  any  money  paid 
thereon,  and  the  time  when. 

14.  And  such    other   entries   as   may   be    material. 
[1770.] 

The  following  is  the  list  of  fees  chargeable  by  the  justice : 

§  375.  FEES  OF  JUSTICE  OF  THE  PEACE. 

The  fees  and  compensation  of  justices  of  the  peace 
shall  be  as  follows,  to  wit: 


216  JUSTICE  OF  THE  PEACE  GUIDE. 

For  docketing  each  cause,  issuing  notice,  filings 

and  judgment  to  be  paid  when  case  is  filed $1.00 

Attachments 1 . 00 

For  docketing,  filings  and  order  in  garnishment. .  1.00* 

Replevin 1.00 

For  trial  of  each  cause 1 . 00 

For  issuing  subpoena,  any  number  of  names 25 

For  approving  bond,  including  justification 50 

For  order  and  filings  for  publication  of  summons.       50 
For  each  continuance  or  adjournment  by  consent 
or  on  motion  of  either  party,  except  first  con- 
tinuance   25 

For  order,  transcript  and  filings  on  change  of 

venue 1.00 

For  transcript  of  judgment 75 

For  issuing  writ  of  venire 50 

For  solemnization  of  marriage  and  making  return 

thereof 2.50 

For  taking  affidavits  and  acknowledgments,  each     .25 
For  attending  with  clerk  of  county  commission- 
ers at  the  opening  of  polls,  per  diem 3.00 

For  taking  depositions,  each  folio 10 

Commission  for  deposition 50 

For  issuing  warrant  in  criminal  cases 50 

For  taking  recognizance  of  bail,  including  justifi- 
cation  75 

For  committing  to  jail 50 

[1864.] 

§  376.    FEES  OF  SALARIED  JUSTICES. 

"When  the  justice  receives  a  regular  salary,  two  dollars  is 
sufficient  to  carry  the  case  to  judgment. 

In  any  civil  action  commenced  before  or  transferred 
to  a  justice  of  the  peace  receiving  a  salary,  the  plaintiff 
may  at  the  time  of  such  commencement  or  transfer,  pay 
to  such  justice  the  sum  of  two  dollars,  which  sum  shall 
be  all  the  fees  and  charges  which  any  party  to  such 
action  shall  be  compelled  to  pay  to  such  justice  up  to 
and  including  the  rendition  of  judgment  in  such  action, 
unless  process  in  replevin,  attachment  or  garnishment 
shall  issue  therein,  in  which  case  the  party  procuring 
such  process  may  pay  to  such  justice  the  sum  of  one 
dollar  as  full  payment  for  the  fees  and  charges  of  such 
justice  incident  to  the  proceedings  under  such  process; 

•Abolished  by  act  of  1911. 


JUSTICES'  OFFICE  EQUIPMENT,  FEES,  ETC.  217 

but  in  case  said  action  is  transferred  from  such  justice 
before  final  judgment,  such  justice  shall  repay  to  any 
party  making  such  payments  any  sum  in  excess  of  what 
said  party  would  have  been  compelled  to  pay  by  the 
last  section.  [1865.] 

§  377.  OTHER  FEES  NOT  TO  BE  COLLECTED. 

No  justice  of  the  peace  in  any  civil  action  or  proceed- 
ing shall  be  entitled  to  or  receive  any  fees  or  compensa- 
tions not  provided  for  by  this  act.  [1866.] 

§  378.    FEES  TO  BE  PAID  IN  ADVANCE. 

Said  justices  and  constables  shall  not  in  any  case, 
except  for  the  state  or  county  and  other  cases  provided 
by  law,  perform  any  official  service  unless  the  fees  pre- 
scribed for  such  services  are  paid  in  advance,  and  on 
such  payment  the  said  justices  and  constables  must 
-  perform  the  services  required  and  shall  give  receipts 
for  all  fees  collected,  whenever  requested.  For  every 
failure  or  refusal  to  perform  official  duty  when  the 
fees  are  tendered,  said  justices  and  constables  shall  be 
liable  on  their  official  bonds.  [6549.] 

§  379.     SALARY  OF  JUSTICE  PRO  TEM. 

A  justice  pro  tern,  is  remunerated  at  the  rate  of  five  dol- 
lars a  day  as  police  judge. 

In  case  of  the  temporary  absence  or  inability  of  the 
police  judge  to  act  the  mayor  shall  appoint,  from  among 
the  practicing  attorneys  qualified  electors  of  the  city,  a 
police  judge  pro  tempore,  who,  before  entering  upon 
the  duties  as  such,  shall  take  and  subscribe  an  oath  as 
other  judicial  officers,  and  while  so  acting  he  shall  have 
all  the  powers  of  the  police  judge:  Provided,  however, 
such  appointment  shall  not  continue  for  a  longer  period 
than  the  absence  or  disability  of  the  police  judge. 
Such  police  judge  pro  tempore  to  receive  compensa- 
tion at  the  rate  of  five  dollars  a  day  to  be  paid  by  the 
city. 

§  380.    HOW  JUSTICES'  SALARIES  ARE  PAID. 

Payment  is  monthly  out  of  the  county  treasury. 

The  salaries  of  justices  of  the  peace  and  constables, 
provided  for  in  this  act,  shall  be  paid  monthly  out  of 
the  county  treasury,  and  from  the  same  funds  out  of 


218  JUSTICE  OP   THE  PEACE  GUIDE. 

which  other  salaried  county  officers  are  paid,  and  it 
shall  be  the  duty  of  the  county  auditor,  on  the  first 
Monday  of  each  and  every  month,  to  draw  his  warrant 
upon  the  county  treasurer  in  favor  of  each  of  said  jus- 
tices and  constables  for  the  amount  of  salary  due  him, 
under  the  provisions  of  this  act  for  the  preceding 
month:  Provided,  that  the  auditor  shall  not  draw  his 
warrant  for  the  salary  of  any  such  officer  for  any  month 
until  the  latter  first  shall  have  filed  his  duplicate  receipt 
with  the  auditor,  properly  signed  by  the  treasurer,  show- 
ing that  he  has  made  the  statement  and  settlement  for 
that  month  as  required  by  this  act.  [6546.] 

§  381.    FEE-BOOK   AND  ACCOUNTS. 

Book: 

Each  of  the  said  justices  of  the  peace  and  constables 
shall  keep  a  fee-book,  open  to  public  inspection  during 
office  hours,  in  which  must  be  entered  at  once  and  in 
detail  all  fines  and  fees  or  compensation  of  whatever 
nature,  kind  or  description,  collected  or  chargeable. 
On  the  first  Monday  of  each  and  every  month  the  said 
justices  of  the  peace  and  constables  must  add  up  each 
column  in  their  fee-books  to  the  first  of  each  month 
and  set  down  the  totals,  and  on  the  expiration  of  the 
term  of  each  officer  they  must  deliver  to  the  county 
auditor  all  fee-books  kept  by  them.  [6543.] 

Accounts  of  Fees: 

The  justices  of  the  peace  and  constable  shall  charge 
and  collect  for  the  use  of  their  respective  counties,  and 
pay  into  the  county  treasury  on  the  first  Monday  in  each 
month,  and  on  going  out  of  office,  all  the  fees  now  or 
hereafter  allowed  by  law  paid  or  chargeable  in  all  cases, 
except  such  fees  as  are  a  charge  against  the  county 
or  state,  and  also  on  the  first  Monday  in  each  month, 
and  on  going  out  of  office,  the  said  justices  of  the 
peace  shall  pay  into  the  county  treasury  all  moneys  they 
shall  have  received  on  account  of  fines  collected  for 
violations  of  any  state  law.  [6542.] 

Fees  Go  to  Treasurer: 

All  fees  and  compensation  collected  from  any  source, 
and  all  fines  collected  for  violations  of  any  state  law, 
shall  be  paid  to  the  county  treasurer  on  the  first  Monday 
of  the  following  month,  and  the  said  justices  and  con- 


JUSTICES'  OFFICE  EQUIPMENT,  FEES,  ETC.  219 

stable  Lt  the  same  time  shall  deliver  to  such  treasurer 
a  statement  and  copy  of  the  fee-book  for  the  month 
last  past,  showing  by  items  the  sources  from  which  such 
fees  and  fines  were  derived,  and  shall  append  thereto 
an  affidavit  that  they  have  received  no  other  money 
for  fees  or  fines,  not  before  paid  over  to  such  treasurer. 
The  treasurer  shall  file  and  preserve  in  his  office  said 
statements  and  affidavits,  and  shall  issue  to  said  justices 
and  constables  one  original  and  one  duplicate  receipt 
therefor,  and  the  said  justices  and  constables  shall  pre- 
serve one  in  their  offices  and  file  the  duplicate  with 
the  county  auditor,  whereupon  the  auditor  shall  charge 
the  treasurer  with  the  amount  shown  by  the  receipt. 
[6544.] 

Salary  Fund: 

All  fees  by  this  act  directed  to  be  paid  into  the  county 
treasury,  when  received  shall  be  put  into  the  salary  fund 
'    of  the  county  treasury.     [6545.] 

§  382.     SALARY  IN  CITY  OF  MORE  THAN  FIVE  THOU- 
SAND. 

The  salaries  of  justices  of  the  peace  and  constables 
elected  at  the  general  election  to  be  held  in  November, 
eighteen  hundred  and  ninety-eight,  and  biennially 
thereafter  in  cities  of  more  than  five  thousand  inhabit- 
ants shall  be  as  follows: 

1.  Salaries  of  justices  of  the  peace,  twelve  hundred 
dollars  per  annum,  payable  as  now  provided  by  law; 

2.  Salaries  of  constables,  seven  hundred  and  twenty 
dollars  per  annum,  payable  as  now  provided  by  law. 
[6535.] 

§  383.    SALARY  IN  CITIES    OF    OVER   THIRTY-FIVE 
THOUSAND. 

The  salaries  of  justices  of  the  peace  and  constables 
hereafter  elected  or  appointed  in  cities  having  a  popula- 
tion of  more  than  thirty-five  thousand  (35,000)  inhabit- 
ants shall  be  as  follows:  (1)  Salaries  of  justices  of  the 
peace  in  cities  having  a  population  of  more  than  thirty- 
five  thousand  (35,000)  inhabitants,  fifteen  hundred  dol- 
lars ($1,500)  per  annum,  payable  as  now  provided  by 
law.  (2)  Salaries  of  constables  in  cities  having  a  popu- 
lation of  more  than  thirty-five  thousand  (35,000)  in- 


220  JUSTICE   OP   THE  PEACE   GUIDE. 

habitants,  nine  hundred  and  sixty  dollars  ($960)  per 
annum,  payable  as  now  provided  by  law.     [6536.] 

In  cities  of  eighty  thousand  or  more  inhabitants  the  justice 
receives  eighteen  hundred  ($1,800)  dollars  per  annum  and 
the  constables  receive  twelve  hundred  ($1,200)  dollars  per 
annum. 

§  384.  MONEYS  TO  BE  PAID  TO  COUNTY  TREAS- 
URER. 

It  shall  be  the  duty  of  every  justice,  on  the  first  Mon- 
days in  January  and  July  in  every  year,  and  on  going 
out  of  office  to  pay  over  to  the  treasurer  of  his  county 
all  money  he  may  have  received  on  account  of  fines, 
and  all  fees  which  may  have  remained  unclaimed  in  his 
hands  for  twelve  months ;  and  he  shall,  at  the  same  time, 
deliver  to  such  treasurer  a  statement  in  writing,  show- 
ing by  items  the  sources  from  which  such  money  was 
derived,  and  shall  append  thereto  an  affidavit  that  he 
has  received  no  other  money  for  fines,  not  before  paid 
over  to  such  treasurer,  and  has  no  other  fees  unclaimed 
for  twelve  months  in  his  hands;  and  the  treasurer's 
receipt  therefor  he  shall  file  with  the  auditor,  who  shall 
give  him  a  quietus.  [6541.] 


HOW  JUSTICES  OF  THE  PEACE  ARE  ELECTED  AND  QUALIFY.      221 


CHAPTER  XXVI. 

HOW  JUSTICES  OF  THE  PEACE  ARE  ELECTED  AND 

QUALIFY. 

§  385.  Election  precincts. 

§  386.  Number  in  incorporated  cities. 

§  387.  In  cities  of  more  than  five  thousand  inhabitants. 

§  388.  Number  in  first  class  cities — Must  be  a  lawyer. 

§  389.  In  cities  of  over  thirty-five  thousand  inhabitants. 

§  390.  The  number  of  justices. 

§  391.  Who  are  eligible. 

§  392.  Term  of  the  office. 

§  393.  Certificate  and  oath. 

§  394.  Jurisdiction. 

§  395.  New  precinct. 

§  396.  Liability  on  bond. 

§  397.  Successor  in  office. 

§  398.  Penalty  of  failure. 

§  385.    ELECTION  PRECINCTS. 

The  following  are  the  statutes  governing  the  election  and 
qualification  of  justices  of  the  peace,  and  require  no  ex- 
planation : 

That  the  qualified  electors  of  each  election  precinct 
in  this  state  shall,  at  the  next  general  election,  and 
biennially  thereafter,  elect  one  or  more  justices  of  the 
peace  as  hereinafter  provided.  [6513.] 

§  386.    NUMBER  IN  INCORPORATED  CITIES. 

Each  incorporated  city  in  this  state,  together  with 
any  adjoining  precincts,  if  any  there  are,  lying  partly 
within  and  partly  without  said  city,  shall,  for  the  pur- 
poses of  this  chapter,  and  for  fixing  and  limiting  the 
number  of  justices  of  the  peace  to  be  elected  in  such 
city,  be  deemed  and  considered  one  precinct,  and  the 
qualified  electors  within  the  limits  thereof,  shall,  at  each 
general  election  at  the  several  polling  places  therein, 
vote  for  and  elect  two  justices  of  the  peace,  and  no  more. 
[6531.] 

This  provision  is  superseded  in  the  following  statute  as 
regards  cities  of  over  five  thousand  inhabitants. 


222  JUSTICE  OP  THE  PEACE  GUIDE. 

§  387.    IN  CITIES  OF  MORE  THAN  FIVE  THOUSAND 
INHABITANTS. 

There  shall  be  elected  at  the  general  election  to  be 
held  in  November,  1898,  and  biennially  thereafter,  in 
cities  of  more  than  five  thousand  inhabitants,  only  one 
justice  of  the  peace  and  one  constable  and  no  more. 
[6532.] 

§  388.    NUMBER  IN  FIRST  CLASS  CITIES— MUST  BE 
A  LAWYER. 

In  cities  of  the  first  class,  the  justice  of  the  peace  must 
be  a  regularly  admitted  attorney  at  law. 

Each  incorporated  city  of  the  first  class  in  this  state, 
together  with  any  adjoining  precincts,  if  any  there  are, 
lying  partly  within  and  partly  without  said  city,  shall 
for  the  purposes  of  this  act,  and  for  fixing  and  limit- 
ing the  number  of  justices  of  the  peace  to  be  elected 
in  such  city,  be  deemed  and  considered  one  precinct, 
and  the  qualified  electors  within  the  limits  thereof  shall, 
at  each  general  election  vote  for  and  elect  two  justices 
of  the  peace,  who  shall  be  attorneys  at  law,  duly  ad- 
mitted to  practice  in  the  supreme  court  of  the  state,  and 
one  constable.  [6533.] 

In  the  city  of  Seattle  there  are  three  justices  of  the  peace 
and  also  three  constables,  the  following  legislation  having 
authorized  the  election  of  such  additional  officers. 

§  389.    IN  CITIES  OF  OVER  THIRTY-FIVE  THOUSAND 
INHABITANTS. 

There  shall  be  elected  at  the  general  election  to  be 
held  in  November,  1906,  and  biennially  thereafter,  in 
each  city  having  a  population  of  more  than  thirty- 
five  thousand  (35,000)  inhabitants,  and  less  than  eighty 
thousand  (80,000)  inhabitants,  two  justices  of  the 
peace  and  two  constables,  and  in  cities  having  a  popula- 
tion of  more  than  eighty  thousand  (80,000)  inhabitants 
three  justices  of  the  peace  and  three  constables,  and  no 
more,  whose  term  of  office  shall  be  for  the  period  of  two 
years  from  the  second  Monday  of  January  following 
their  election.  [6534.] 


HOW  JUSTICES  OF  THE  PEACE  ARE  ELECTED  AND  QUALIFY.      223 

§  390.     THE  NUMBER  OF  JUSTICES. 

Each  election  precinct  shall  be  entitled  to  elect  one 
justice  of  the  peace,  but  the  county  commissioners  of 
any  county  may,  at  the  time  of  organizing  the  precinct, 
or  at  any  time  thereafter,  authorize  the  election  of  one 
additional  justice  of  the  peace  in  any  precinct.  [6514.] 

§  391.    WHO  ARE  ELIGIBLE. 

No  person  shall  be  eligible  to  the  office  of  justice  of 
the  peace  who  is  not  a  qualified  voter,  and  who  has 
not  been  a  resident  of  the  county  in  which  he  is  elected 
six  months  next  preceding  his  election;  nor  shall  any 
sheriff,  coroner,  or  clerk  of  the  superior  court  be  eligible 
to  or  hold  such  office.  [6516.] 

§  392.    TERM  OF  THE  OFFICE. 

,  Every  justice  of  the  peace  shall  hold  his  office  for 
the  term  of  two  years,  and  until  his  successor  is  elected 
and  qualified.  [6520.] 

§  393.     CERTIFICATE  AND  OATH. 

The  election  of  justice  of  the  peace  shall  be  conducted 
and  return  of  such  election  made  in  the  same  manner 
as  other  elections;  and  every  person  duly  elected  shall 
be  entitled  to  a  certificate  of  election,  and  shall  take 
an  oath  of  office;  which  oath  shall  be  indorsed  on  the 
back  of  the  certificate  of  election,  and,  together  with 
the  certificate,  filed  in  the  office  of  the  county  auditor. 
[6517.] 

STATUTORY  FORM. 
BOND  OF  JUSTICE  OF  THE  PEACE. 

Enow  all  men  by  these  presents,  that  we,  J  P,  A  B 
and  C  D,  are  held  and  firmly  bound  unto  the  board  of 

county  commissioners  of  the  county  of ,  in  the 

state  of  Washington,  in  the  sum  of  five  hundred  dollars, 
for  the  payment  of  which  we  jointly  and  severally  bind 
ourselves,  our  heirs,  executors  and  administrators. 

Sealed  with  our  seals;  dated  this day  of , 

A.  D.  19 

Whereas,  the  said  J  P  has  been  duly  elected  a  justice 
of  the  peace,  in  and  for  the  precinct  of in  the 


224  JUSTICE   OF   THE  PEACE   GUIDE. 

county  of ,  A.  D.  19 Now  the  condition 

of  the  above  obligation  is  such,  that  if  the  said  J  P  shall 
faithfully  pay  over,  according  to  law,  all  moneys  which 
shall  come  into  his  hands  by  virtue  of  his  office  as  jus- 
tice of  the  peace,  then  this  obligation  shall  be  void, 
otherwise  in  full  force. 

J  P.  [L.  S.] 
AB.  [L.  S.] 
C  D.  [L.  S.] 

§  394.    JURISDICTION. 

The  qualifications,  term  of  office,  duties,  powers  and 
jurisdiction  of  justices  of  the  peace  shall  be  as  now  pro- 
vided by  law,  except  that  no  justice  of  the  peace  shall 
hereafter  have  jurisdiction  of  any  action  brought  to  en- 
force or  collect  any  claim  or  demand  which  said  justice 
had,  in  any  manner,  attempted  to  collect  as  agent  or 
otherwise.  [6515.] 

§  395.    NEW  PRECINCT. 

When  a  new  precinct  shall  be  divided,  and  any  justice 
of  the  peace  of  the  original  precinct  shall  fall  into  the 
new  one,  he  shall  continue  to  discharge  the  duties  of  jus- 
tice of  the  peace  until  his  term  of  office  expires,  and  his 
successor  is  elected  and  qualified.  [6521.] 

§  396.    LIABILITY  ON  BOND. 

Such  bond  shall  be  filed  in  the  office  of  the  county 
auditor;  and  every  person  aggrieved  by  a  breach  of  the 
condition  thereof  may,  by  an  action  upon  the  bond,  have 
judgment  against  the  justice  and  his  sureties,  for  such 
sum  as  he  may  show  himself  entitled  to,  with  costs  and 
interest  at  the  rate  of  twenty-five  per  cent  per  annum; 
and  upon  any  such  judgment  stay  of  execution  shall  not 
be  allowed.  [6519.] 

§  397.     SUCCESSOR  IN  OFFICE. 

If  any  justice  of  the  peace  shall  die,  resign  or  remove 
out  of  the  precinct  for  which  he  may  be  elected,  or  his 
term  of  office  be  in  any  other  manner  terminated,  the 
docket,  books,  records  and  papers  appertaining  to  his 
office,  or  relating  to  any  suit,  matter  or  controversy, 
committed  to  him  in  his  official  capacity,  shall  be  de- 
livered to  the  nearest  justice  in  the  precinct,  who  may 
thereupon  proceed  to  hear,  try  and  determine,  such 


HOW  JUSTICES  OP  THE  PEACE  ARE  ELECTED  AND  QUALIFY.      225 

matter,  suit  or  controversy,  or  issue  execution  thereon, 
in  the  same  manner  as  it  would  have  been  lawful  for 
the  justice  before  whom  such  suit  or  matter  was  com- 
menced to  have  done :  Provided,  that  if  there  be  no  other 
justice  of  the  peace  in  said  precinct,  such  docket,  books, 
records  and  papers  shall  be  delivered  to  the  county 
auditor,  who,  on  demand,  shall  deliver  the  same  to  a 
justice  of  said  precinct,  when  there  shall  be  one  qual- 
ified therein,  who  shall  exercise  the  same  powers  as 
though  they  had  been  originally  delivered  to  him. 
[6522.] 

§  398.    PENALTY  OF  FAILURE. 

Every  person  whose  duty  it  is  to  deliver  the  dockets, 
books,  records  and  papers  as  prescribed  in  the  last  sec- 
tion, shall  forfeit  and  pay,  for  the  use  of  the  county,  fif- 
teen dollars  for  every  three  months'  neglect  to  perform 
such  duty,  which  sum  may  be  recovered  at  the  suit  of 
any  person.  [6523.] 

15 


226  JUSTICE   OP  THE  PEACE  GUIDE. 


CHAPTER  XXVII. 
SOLEMNIZING  MAKRIAGE. 

§  399.  Authority  to  solemnize. 

§  400.  License  by  county  auditor. 

§  401.  Affidavit  for  marriage  license,  etc. 

§  402.  Marriage  forbidden  in  certain  cases. 

§  403.  Marriage  forbidden — Continued. 

§  404.  Penalty  for  violating  marriage  statute. 

§  405.  Authorized  officer  not  to  solemnize. 

§  406.  Form  of  ceremony. 

§  407.  The  marriage  certificate. 

§  408.  Form  of  certificate. 

§  409.  Certificate  to  be  recorded. 

§  410.  Penalty  for  failure  to  deliver  certificate 

§  411.  Marriages,  when  valid. 

§  412.  Solemnization  by  unqualified  person. 

§  413.  Voidable  marriages. 

The  matrimonial  relation  is  properly  regarded  as  a  condi- 
tion or  status,  but  is  commonly  called  a  contract — a  civil 
contract — and  is  so  declared  to  be  by  the  statutes  of  the 
state  of  Washington. 

Marriage  is  a  civil  contract  which  may  be  entered  into 
by  males  of  the  age  of  twenty-one  years,  and  females  of 
the  age  of  eighteen  years,  who  are  otherwise  capable. 
[7150.] 

The  justice  of  the  peace  has  authority  to  perform  the 
marriage  ceremony  together  with  other  officers  designated 
by  law.  The  justice,  however,  should  be  familiar  with  the 
statutes  governing  this  subject  and  be  acquainted  with  the 
qualifications  and  disqualifications  of  persons  applying  to 
him  for  his  services  in  this  regard. 

§  399.    AUTHORITY  TO  SOLEMNIZE. 

The  following  named  officers  and  persons  are  hereby 
authorized  to  solemnize  marriages,  to  wit:  Judges  of 
the  supreme  court,  judges  of  the  superior  courts,  any 
regular  ordained  minister  or  priest  of  any  church  or  re- 


SOLEMNIZING    MAERIAGB.  227 

ligious  denomination  anywhere  within  the  state,  and 
justices  of  the  peace  within  their  respective  counties. 
[7154.] 

Before  the  justice  of  the  peace  can  perform  the  ceremony 
which  joins  two  persons  in  marriage,  the  county  auditor 
must  issue  a  license  to  the  contracting  parties. 

§  400.    LICENSE  BY  COUNTY  AUDITOR. 

Before  any  persons  can  be  joined  in  marriage  they 
shall  procure  a  license  from  the  county  auditor,  author- 
izing any  person  or  religious  organization  or  congrega- 
tion to  join  together  the  persons  therein  named  as  hus- 
band and  wife. 

Application  is  made  to  th«  county  auditor  by  both 
parties  personally,  together  with  a  witness  who  shall  make 
certain  affidavit  as  prescribed  in  the  following  section.  A 
female  under  eighteen  years  of  age  and  over  fifteen  years 
shall  have  the  written  consent  of  her  parents. 

§  401.    AFFIDAVIT  FOR  MARRIAGE  LICENSE,  ETC. 

The  county  auditor,  before  a  marriage  license  is  is- 
sued, upon  the  payment  of  a  license  fee  of  two  dollars, 
shall  require  each  applicant  therefor  to  make  and  file 
in  his  office  upon  blanks  to  be  provided  by  the  county 
for  that  purpose,  an  affidavit  showing  that  such  appli- 
cant is  not  feeble-minded,  an  imbecile,  epileptic,  insane, 
a  common  drunkard,  or  afflicted  with  pulmonary  tuber- 
culosis in  its  advanced  stages;  provided,  that  in  addi- 
tion, the  affidavit  of  the  male  applicant  for  such  mar- 
riage license  shall  show  that  such  male  is  not  afflicted 
with  any  contagious  venereal  disease.  He  shall  also  re- 
quire an  affidavit  of  some  disinterested  credible  person 
showing  that  neither  of  said  persons  is  an  habitual  crimi- 
nal, and  that  the  female  is  over  the  age  of  eighteen  years 
and  the  male  is  over  the  age  of  twenty-one  years:  Pro- 
vided, that  if  the  consent  in  writing  is  obtained  of  the 
father,  mother,  or  legal  guardian  of  the  person  for  whom 
the  license  is  required,  the  license  may  be  granted  in 
cases  where  the  female  is  under  the  age  of  eighteen 
years  or  the  male  is  under  the  age  of  twenty-one  years: 
Provided,  that  no  consent  shall  be  given,  nor  license  is- 
sued unless  such  female  be  over  the  age  of  fifteen  years. 
Such  affidavit  may  be  subscribed  and  sworn  to  before 


228  JUSTICE  OP  THE  PEACE  GUIDE. 

any  person  authorized  to  administer  oaths.  Anyone 
knowingly  swearing  falsely  to  any  of  the  statements 
contained  in  the  affidavits  mentioned  in  this  act  shall  be 
deemed  guilty  of  perjury  and  punished  as  provided  by 
the  laws  of  the  state  of  Washington.  [7165.] 

License  will  not  be  issued  to  nor  marriages  permitted 
between  certain  persons,  as  those  who  stand  in  certain  blood 
relationships  to  each  other,  or  who,  by  reason  of  disease 
or  degeneracy,  are  liable  to  propagate  defective  children. 
The  policy  of  society  is  to  encourage  and  protect  the  matri- 
monial condition  under  all  possible  reasonable  circum- 
stances, but  with  the  advancement  of  ideas  on  this  subject, 
certain  restrictions  have  been  deemed  necessary  to  the 
proper  protection  of  society. 

§  402.    MARRIAGE  FORBIDDEN  IN  CERTAIN  CASES. 
Marriages  in  the  following  cases  are  prohibited : 

1.  When  either  party  thereto  has  a  wife  or  husband 
living  at  the  time  of  such  marriage ; 

2.  When  the  parties  thereto  are  nearer  of  kin  to  each 
other  than  second  cousins,  whether  of  the  whole  or  half 
blood,  computing  by  the  rules  of  the  civil  law; 

3.  It  shall  be  unlawful  for  any  man  to  marry  his 
father's  sister,  mother's  sister,  father's  widow,  wife's 
mother,  daughter,  wife's  daughter,  son's  widow,  sister, 
son's  daughter,  daughter's  daughter,  son's  son's  widow, 
daughter's  son's  widow,  brother's  daughter,  or  sister's 
daughter;  it  shall  be  unlawful  for  any  woman  to  marry 
her  father's  brother,  mother's  brother,  mother's  hus- 
band, husband's  father,  son,  husband's  son,  daughter's 
husband,    brother,    son's    son,    daughter's    son,    son's 
daughter's  husband,   daughter's   daughter's   husband, 
brother's  son,  or  sister's  son,  and  if  any  person  being 
within  the  degrees  of  consanguinity  or  affinity  in  which 
marriages  are  prohibited  in  this  section  carnally  know 
each  other,  they  shall  be  deemed  guilty  of  incest,  and 
shall  be  punished  by  imprisonment  in  the  state  peniten- 
tiary for  a  term  not  exceeding  ten  years  and  not  less 
than  one  year.    [7151.] 

§  403.    MARRIAGE  FORBIDDEN— CONTINUED. 

No  woman  under  the  age  of  forty-five  years,  or  man 
of  any  age,  except  he  marry  a  woman  over  the  age  of 


SOLEMNIZING    MARRIAGE.  229 

forty-five  years,  either  of  whom  is  a  common  drunkard, 
habitual  criminal,  epileptic,  imbecile,  feeble-minded  per- 
son, idiot  or  insane  person,  or  person  who  has  thereto- 
fore been  afflicted  with  hereditary  insanity,  or  who  is 
afflicted  with  pulmonary  tuberculosis  in  its  advanced 
stages,  or  any  contagious  venereal  disease,  shall  here- 
after intermarry  or  marry  any  other  person  within  this 
state.  [7152.] 

A  fine  of  not  more  than  one  thousand  dollars  or  imprison- 
ment in  the  penitentiary  for  not  more  than  three  years  is 
the  punishment  for  the  infraction  of  this  section. 

§  404.    PENALTY  FOR  VIOLATING  MARRIAGE  STAT- 
UTE. 

Any  person  knowingly  violating  any  of  the  provisions 
of  sections  7152,  7153,  or  7164  shall,  upon  conviction! 
thereof,  be  punished  by  a  fine  of  not  more  than  one  thon- 
'  sand  dollars,  or  by  imprisonment  in  the  state  peniten- 
tiary for  a  period  of  not  more  than  three  years,  or  by 
both  such  fine  and  imprisonment.  [7165.] 

Subject  to  the  foregoing  punishment  is  any  officer  who 
shall  join  in  marriages  forbidden  persons. 

§  405.    AUTHORIZED  OFFICER  NOT  TO  SOLEMNIZE. 

No  clergyman  or  other  officer  authorized  by  law  to 
solemnize  marriages  within  this  state  shall  hereafter 
knowingly  perform  a  marriage  ceremony  uniting  per- 
sons in  matrimony  either  of  whom  is  an  epileptic,  imbe- 
cile, feeble-minded  person,  common  drunkard,  idiot, 
insane  person,  or  person  who  has  heretofore  been 
afflicted  with  hereditary  insanity,  habitual  criminal,  or 
person  afflicted  with  pulmonary  tuberculosis  in  its  ad- 
vanced stages,  or  any  contagious  venereal  disease,  un- 
less the  female  party  to  such  marriage  is  over  the  age 
of  forty-five  years.  [7153.] 

The  form  of  the  ceremony  of  solemnization  is  not  particu- 
larly specified.  The  only  requirement  is  that  in  the  pres- 
ence of  two  witnesses  the  parties  shall  declare  that  they  take 
each  other  to  be  husband  and  wife. 

§  406.    FORM  OF  CEREMONY. 

In  the  solemnization  of  marriage  no  particular  form 
is  required,  except  that  the  parties  thereto  shall  assent 


230  JUSTICE  OP  THE  PEACE  GUIDE. 

or  declare  in  the  presence  of  the  minister,  priest,  or  ju- 
dicial officer  solemnizing  the  same,  and  in  the  presence 
of  at  least  two  attending  witnesses,  that  they  take  each 
other  to  be  husband  and  wife.  [7156.] 

A  general  form  is  as  follows: 

The  justice  shall  inquire  of  the  man  and  woman  as 
follows : 

Of  the  man:  "Will  you  have  this  woman  to  be  your 
wedded  wife,  to  live  together  after  the  ordinance  of  God, 
in  the  holy  state  of  matrimony?  Will  you  love  her, 
comfort,  honor  and  keep  her  in  sickness  and  in  health; 
and  forsaking  all  others,  keep  only  unto  her,  so  long  as 
you  both  shall  live?" 

The  man  answers:  "I  will." 

Of  the  woman:  "Will  you  have  this  man  to  be  your 
wedded  husband,  to  live  together  after  the  ordinance  of 
God,  in  the  holy  state  of  matrimony?  Will  you  love 
hrm,  comfort  him,  honor  and  keep  him,  in  sickness  and 
in  health,  and  forsaking  all  others,  keep  you  only  unto 
him  so  long  as  you  both  shall  live?" 

The  woman  answers:  "I  will." 

Thereupon  the  justice  joins  their  hands  and  says: 
"Forasmuch  as  you  have  consented  together  in  holy 
wedlock  and  have  witnessed  the  same  before  God  and 
these  witnesses,  and  have  declared  the  same  by  joining 
your  hands ;  therefore,  by  virtue  of  the  authority  in  me 
vested  by  the  state  of  Washington,  I  pronounce  you  hus- 
band and  wife." 

The  parties  are  then  entitled  to  receive  a  marriage  certifi- 
cate. 

§  407.    THE  MARRIAGE  CERTIFICATE. 

The  person  solemnizing  a  marriage  shall  give  to  each 
of  the  parties  thereto,  if  required,  a  certificate  thereof, 
specifying  therein  the  names  and  residence  of  the  par- 
ties, and  of  at  least  two  witnesses  present,  the  time  and 
place  of  such  marriage,  and  the  date  of  the  license 
thereof,  and  by  whom  issued.  [7157.] 

§  408.    FORM  OF  CERTIFICATE. 

A  person  solemnizing  a  marriage  shall  within  three 
months  thereafter  make  and  deliver  to  the  judge  of  the 
superior  court  (county  clerk)  of  the  county  where  the 


SOLEMNIZING  MARRIAGE.  231 

marriage  took  place  a  certificate  containing  the  particu- 
lars specified  in  the  last  section,  which  said  certificate 
may  he  in  the  following  form: — 

State  of  Washington, 
County  of 

This  is  to  certify  that  the  undersigned,  a by 

authority  of  a  license  hearing  date  the   ....   day  of 

,  A.  D.  19 ,  and  issued  by  the  county  auditor 

of  the  county  of   ,  did,  on  the   day  of 

,  A.  D.  19 ,  at  the  house  of ,  in  the 

county  and  state  aforesaid,  join  in  lawful  wedlock  A  B 

of  the  county  of of  the ,  and  0  D  of 

the  county  of    of  the    with  their 

mutual  assent,  in  the  presence  of  F  H  and  E  6,  wit- 
nesses. 

Witness  my  hand.     [7158.] 

§  409.    CERTIFICATE  TO  BE  RECORDED. 

The  judge  of  the  superior  court  (county  clerk)  shall 
file  such  certificate  and  record  the  same  in  the  record 
of  marriages,  and  the  legal  fee  therefor  shall  be  one 
dollar,  to  be  paid  by  the  person  solemnizing  the  mar- 
riage, who  shall  be  entitled  to  demand  and  receive  the 
same  from  the  parties  before  the  marriage.  [7159.] 

§  410.    PENALTY  FOR  FAILURE  TO  DELIVER  CER- 
TIFICATE. 

Any  person  solemnizing  a  marriage  who  shall  will- 
fully refuse  or  neglect  to  make  and  deliver  to  the  judge 
of  the  superior  court  (county  clerk)  for  record  the  cer- 
tificate mentioned  in  the  last  section,  and  pay  the  fee 
for  recording  the  same  within  the  time  in  such  section 
specified,  shall  be  deemed  guilty  of  a  misdemeanor,  and 
upon  conviction  shall  pay,  for  such  refusal  or  neglect,  a 
fine  of  not  less  than  twenty-five  nor  more  than  three 
hundred  dollars.  [7160.] 

All  marriages  to  which  there  are  no  legal  impediments 
are  declared  valid  in  the  following  section: 

§  411.    MARRIAGES,  WHEN  VALID. 

All  marriages  to  which  there  are  no  legal  impedi- 
ments, solemnized  before  or  in  any  religious  organiza- 
tion or  congregation,  according  to  the  established  ritual 


232  JUSTICE  OP  THE  PEACE  GUIDE. 

or  form  commonly  practiced  therein,  are  valid;  and  a 
certificate,  containing  the  particulars  specified  in  sec- 
tions 7157  and  7158,  shall  be  made  and  filed  for  record 
by  the  person  or  persons  presiding  or  officiating  in  or 
recording  the  proceedings  of  such  religious  organization . 
or  congregation,  in  the  manner  and  with  like  effect  as  in 
ordinary  cases.  [7161.] 

When  a  person  performs  a  marriage  who  is  not  prop- 
erly authorized,  the  marriage  shall  not  be  void  when  there 
is  a  belief  by  the  parties  that  they  were  being  lawfully 
married. 

§  412.  SOLEMNIZATION  BY  UNQUALIFIED  PERSON. 
A  marriage  solemnized  before  any  person  professing 
to  be  a  minister,  a  priest  of  any  religious  denomination 
in  this  state,  or  professing  to  be  an  authorized  officer 
thereof,  is  not  void,  nor  shall  the  validity  thereof  be  in 
any  way  affected  on  account  of  any  want  of  power  or 
authority  in  such  person,  if  such  marriage  be  consum- 
mated with  a  belief  on  the  part  of  the  persons  so  mar- 
ried, or  either  of  them,  that  they  have  been  lawfully 
joined  in  marriage.  Illegitimate  children  become  legit- 
imate by  the  subsequent  marriage  of  their  parents  with 
each  other.  [7155.] 

When  a  person  is  incapable  of  consenting  to  a  marriage 
the  same  is  voidable. 

§  413.    VOIDABLE  MARRIAGES. 

When  either  party  to  a  marriage  shall  be  incapable 
of  consenting  thereto,  for  want  of  legal  age  or  a  suffi- 
cient understanding,  or  when  the  consent  of  either  party 
shall  be  obtained  by  force  or  fraud,  such  marriage  is 
voidable,  but  only  at  the  suit  of  the  party  laboring  under 
the  disability  or  upon  whom  the  force  or  fraud  is  im- 
posed. [7162.] 


TRUANT  CHILDREN  AND  COUNTY  PRISONERS.  233 


CHAPTER  XXVIII. 
TRUANT  CHILDREN  AND  COUNTY  PRISONERS. 

§  414.  Justice  of  the  peace  may  sentence  prisoners  to  work. 

f  415.  County  prisoners  to  be  worked. 

§  416.  Truant  children. 

§  417.  Concurrent  jurisdiction  over  truanta. 

§  414.    JUSTICE  OF    THE    PEACE    MAY    SENTENCE 
PRISONERS  TO  WORK. 

When  a  person  has  been  sentenced  by  any  justice  of 
the  peace  in  a  city  in  this  state  for  a  term  of  imprison- 
ment in  the  city  jail,  whether  in  default  of  payment 
of  a  fine  or  otherwise,  such  person  may  be  compelled  on 
each  day  of  such  term,  except  Sundays,  to  perform  eight 
'  hours'  labor  upon  the  streets,  public  buildings,  and 
grounds  of  such  city,  and  to  wear  an  ordinary  ball  and 
chain  while  performing  such  labor.  [8493.] 

§  415.     COUNTY  PRISONERS  TO  BE  WORKED. 

When  a  person  has  been  sentenced,  by  a  justice  of  the 
peace,  or  a  judge  of  the  superior  court,  to  a  term  of 
imprisonment  in  the  county  jail,  whether  in  default  of 
payment  of  a  fine  or  costs,  or  otherwise,  such  person  may 
be  compelled  to  work  eight  hours  each  day  of  such  term 
in  and  about  the  county  buildings,  public  roads,  streets, 
and  grounds ;  provided,  this  section  and  the  last  preced- 
ing one  of  this  chapter  shall  not  apply  to  persons  com- 
mitted in  default  of  bail.  [8494.] 

§  416.    TRUANT  CHILDREN. 

The  justice  of  the  peace  has  authority  to  commit  truant 
children  to  the  superior  court  for  commitment  to  the  reform 
school. 

Any  attendance  officer,  sheriff,  deputy  sheriff,  mar- 
shal, policeman,  or  any  other  officer  authorized  to  make 
arrests  in  the  city  or  district,  shall  arrest  without  a  war- 
rant a  child  who,  under  the  provisions  of  this  act  (Edu- 
cation) is  required  to  attend  school,  such  child  then 
being  a  truant  from  instruction  in  the  school  which  he 
or  she  is  lawfully  required  to  attend,  shall  forthwith 


234  JUSTICE  OP   THE  PEACE  GUIDE. 

deliver  a  child  so  arrested  either  to  the  custody  of  a 
person  in  parental  relation  to  the  child  or  to  the  teacher 
from  whom  the  child  is  then  a  truant,  or,  in  the  case  of 
habitual  or  incorrigible  truants,  shall  bring  him  or  her 
before  a  justice  of  the  peace.  The  justice  of  the  peace 
shall,  if  he  be  convinced  that  the  child  so  arrested  is  a 
habitual  truant  or  that  the  child  is  guilty  of  willful  and 
continued  disobedience  to  the  school  rules  and  regula- 
tions or  laws,  or  that  the  conduct  of  the  child  is  per- 
nicious and  injurious  to  the  school,  bind  the  child  over 
to  the  superior  court  with  a  view  of  his  commitment  to 
the  state  reform  school  or  other  school  for  inconigibles. 
[4718.] 

§  417.     CONCURRENT     JURISDICTION     OVER     TRU- 
ANTS. 

In  cases  arising  under  this  act  all  justices'  courts,  mu- 
nicipal courts  and  superior  courts  in  the  state  of  Wash- 
ington shall  have  concurrent  jurisdiction.  [4720.] 


BWENB.  235 


CHAPTER  XXIX 

SWINE. 

I  418.  Swine  may  be  impounded. 

§  419.  Assessment  of  damages  by  appraisers. 

I  420.  Fees  of  the  justice. 

§  421.  Slaughtered  animals. 

S  422.  Justice  to  have  copy  of  record. 

§  418.    SWINE  MAY  BE  IMPOUNDED. 

If  any  swine  shall  be  found  running  at  large  contrary 
to  the  provisions  of  this  act,  it  shall  be  lawful  for  any 
person  to  restrain  the  same  forthwith  and  shall  imme- 
diately give  the  owner  notice  in  writing  that  he  has  re- 
strained said  swine,  and  the  amount  of  damages  he 
claims  in  the  premises,  and  requiring  the  owner  to  take 
the  swine  away  and  pay  such  damages.  If  said  owner 
fails  to  comply  with  the  provisions  of  this  section  within 
three  days  after  receiving  such  notice,  such  damages 
may  be  recovered  in  a  civil  action  before  any  justice  of 
the  peace,  and  such  person  who  sustains  damages  as 
aforesaid  shall  have  a  lien  upon  said  swine  for  the  dam- 
ages sustained  by  the  said  swine,  and  for  keeping  same: 
Provided,  that  if  the  owner  of  such  swine  is  unknown, 
the  notice  required  in  this  act  shall  be  published  for  two 
weeks  in  a  newspaper  published  in  the  county.  [3175.] 

§  419.    ASSESSMENT  OF  DAMAGES  BT  APPRAISERS. 

If  the  owner  of  such  swine  so  restrained  shall  object 
to  the  damages  claimed  by  the  persons  having  such 
swine  in  possession,  and  the  parties  cannot  agree  upon 
the  same,  either  party  may  apply  to  any  justice  of  the 
peace  in  the  precinct,  and  if  there  be  no  justice  of  the 
peace  in  the  precinct,  then  the  nearest  justice  in  [the] 
county,  for  the  appointment  of  appraisers  to  assess  the 
damages  done  by  such  swine,  and  the  reasonable  cost 
of  taking  up  and  keeping  the  same ;  and  it  shall  be  the 
duty  of  such  justice  of  the  peace  to  issue  notice  to  three 
disinterested  freeholders  of  the  precinct  to  appear  upon 
the  premises  where  such  swine  may  be,  and  assess  the 
damages  as  herein  required.  [3176.] 


236  JUSTICE  OF   THE  PEACE  GUIDE. 

The  appraisers  then  take  oath  to  impartially  appraise  the 
damages  and  they  will  give  a  written  and  signed  statement 
of  their  appraisement  to  the  parties  and  upon  payment  of 
the  said  damages  the  owner  may  take  away  his  swine,  and 
may  have  a  right  for  wrongful  taking  of  the  property  if 
the  holder  refuses  to  surrender  the  swine.  [3177.] 

§  420.    FEES  OF  THE  JUSTICE. 

The  justice  of  the  peace  shall  be  allowed  a  fee  of  fifty 
cents  for  issuing  the  notice  and  swearing  the  appraisers, 
and  the  constable  or  person  serving  the  notice  shall  be 
allowed  a  fee  of  one  dollar,  which  fee  shall  be  paid  by 
the  owner  of  such  swine  before  he  shall  be  entitled  to 
take  them  away.  Or  if  such  owner  fails  to  pay  such 
fees,  the  person  having  such  swine  shall  pay  the  same, 
and  may  add  the  same  to  the  damages  allowed  him  in 
the  premises.  [3178.] 

§  421.     SLAUGHTERED  ANIMALS. 

From  and  after  the  passage  of  this  act  it  shall  be  the 
duty  of  all  butchers  engaged  in  the  business  of  slaugh- 
tering cattle  in  this  state  to  keep  a  true  and  correct  re- 
port of  all  marks  and  brands  of  all  cattle  slaughtered 
by  them,  recording  also  fhe  name  or  names  of  persons 
from  whom  said  cattle  were  bought,  together  with  their 
residence  and  date  of  purchase  and  delivery  of  said 
cattle.  The  said  record  shall  be  kept  in  a  suitable  book 
in  the  butcher's  place  of  business,  subject  at  all  times 
to  the  inspection  of  the  public.  [3146.] 

§  422.    JUSTICE  TO  HAVE  COPY  OF  RECORD. 

It  shall  be  the  duty  of  all  butchers  keeping  a  record 
as  provided  in  the  last  preceding  section  to  make  or 
cause  to  be  made  on  or  before  the  first  day  of  each 
month  two  exact  and  correct  copies  of  the  said  record 
as  kept  by  him  or  them,  and  shall  be  and  appear  before 
the  nearest  acting  justice  of  the  peace  within  the  county 
in  which  said  butcher  carries  on  and  conducts  his  busi- 
ness, and  shall  make  affidavit  to  the  correctness  of  the 
said  record,  one  copy  of  which  shall  be  placed  and  kept 
on  file  in  the  office  of  the  said  justice  of  the  peace  and 
the  other  copy  shall  be  sent  by  the  said  butcher  to  the 
county  auditor  of  the  county  and  be  placed  and  kept  on 
file  by  the  said  auditor,  and  be  subject  as  other  papers 
in  his  office  to  the  inspection  of  the  public.  [3147.] 


SEAGULLS.  237 


CHAPTER  XXX. 

SEAGULLS. 

I  423.     Penalty. 

§  424.     Justice's  power  to  punish. 

§  425.     Actions  in  favor  of  towns. 

It  shall  be  unlawful  for  any  person  in  this  state,  or 
upon  or  about  any  of  the  waters  or  shores  of  this  state, 
to  take,  injure,  or  kill,  or  endeavor  to  take,  injure,  or 
kill,  any  seagull  of  any  kind  or  species.  [5342.] 

§  423.    PENALTY. 

Any  person  violating  any  of  the  provisions  of  the  last 
section  shall  be  deemed  guilty  of  a  misdemeanor,  and 
-  upon  conviction  thereof  shall  be  punished  by  fine  of  not 
less  than  five  nor  more  than  twenty-five  dollars,  and  in 
default  of  payment  of  the  fine  imposed  shall  be  impris- 
oned in  the  county  jail  for  the  period  of  one  day  for 
each  two  dollars  of  the  fine  so  imposed.  [5343.] 

§  424.    JUSTICE'S  POWER  TO  PUNISH. 

Police  justices  or  other  magistrates  of  incorporated 
cities  or  towns,  and  justices  of  the  peace  (not  excluding 
the  jurisdiction  of  other  courts),  shall  have  jurisdic- 
tion over  all  proceedings  under  the  last  two  sections. 
[5344.] 

§  425.    ACTIONS  IN  FAVOR  OF  TOWNS. 

No  action  in  favor  of  any  town  shall  be  brought  be- 
fore any  justice  of  the  peace  residing  in  such  town. 
[9420.] 


238  JUSTICE  OF   THE  PEACE   GUIDE. 


CHAPTER  XXXI. 
CONSTABLES. 

§  426.  His  duties  and  authority. 

§  427.  Kelative  to  unclaimed  property  or  lost  money  and  goods. 

§  428.  Constable's  sale  of  unclaimed  property. 

§  429.  Return  of  sale. 

§  430.  The  constable's  election. 

§  431.  In  cities  of  five  thousand  population. 

§  432.  The  constable's  salary. 

§  433.  The  constable's  oath. 

§  434.  The  constable's  bond. 

f  435.  Appointment  to  vacant  office. 

!  436.  Schedule  of  feea. 

5  437.  Incomplete  business  to  successor. 

The  constable  is  an  officer,  duly  elected,  whose  business 
it  is  to  obey  the  judicial  orders  of  justices,  judges,  coroners, 
and  perform  the  various  services  required  of  his  office  by 
law. 

§  426.    HIS  DUTIES  AND  AUTHORITY. 

As  to  Service  of  Writ,  Process  or  Order: 

Any  constable  may  within  his  county  serve  any  writ, 
process  or  order,  lawfully  directed  to  him  by  a  justice 
of  the  peace,  superior  judge,  or  coroner,  and  generally 
do  and  perform  all  acts,  by  law  required  of  constables. 
[6529.] 

As  to  Violations  of  the  Criminal  Law: 

It  shall  be  the  duty  of  all  constables,  and  all  sheriffs, 
to  make  complaint  of  all  violations  of  the  criminal  law, 
which  shall  come  to  their  knowledge,  within  their  re- 
spective jurisdictions.  [4004.] 

Authority  in  Attachment: 

The  word  sheriff  as  used  in  this  act  (Attachment)  is 
meant  to  apply  to  constables,  when  the  proceedings  are 
in  a  justice  court,  and  when  the  proceedings  are  in  a 
justice's  court,  the  justice  is  to  be  regarded  as  the  clerk 
of  the  court  for  all  purposes  herein  contemplated:  Pro- 
vided, that  nothing  contained  in  this  act  shall  be  con- 


CONSTABLES.  239 

strued  to  confer  upon  a  justice  of  the  peace  power  to 
issue  a  writ  of  attachment  to  be  served  out  of  the  county 
in  which  such  justice  shall  have  his  office,  or  to  confer 
upon  a  sheriff,  constable  or  other  officer,  power  or  au- 
thority to  serve  a  writ  of  attachment  issued  out  of  jus- 
tice's court  beyond  the  limits  of  the  county  in  which 
such  justice  shall  have  his  office,  except  in  cases  pro- 
vided for  in  section  12  of  this  act:  And,  provided  fur- 
ther, that  nothing  contained  in  this  act  shall  be  con- 
strued or  held  to  authorize  the  attachment  of  real  estate, 
or  any  interest  therein,  under  a  writ  of  attachment  is- 
sued out  of  any  justice's  court.  [679.] 

Process  of  Military  Courts : 

The  president  of  any  court-martial  or  delinquency 
court  may  designate  any  sheriff  or  constable  to  execute 
the  process  and  orders  of  the  court;  and  the  sheriff  or 
constable  so  designated  shall,  when  required,  not  only 
'  perform  the  usual  duties  as  such  officers,  but  shall  also 
execute  any  process,  mandate  or  order  lawfully  issued 
by  such  president  or  court,  and  perform  all  acts  and 
duties  by  this  act  imposed  or  authorized  to  be  performed 
by  any  sheriff  or  constable.  Any  sheriff  or  constable 
who  refuses  to  execute  the  lawful  process  or  orders  of 
such  court  shall  forfeit  his  office  and  may  be  fined  not 
exceeding  one  thousand  dollars.  He  may  be  prosecuted 
in  any  court  of  competent  jurisdiction,  by  the  judge 
advocate-general  or  any  officer  of  his  department. 

§  427.    RELATIVE    TO    UNCLAIMED    PROPERTY    OR 
LOST  MONEY  AND  GOODS. 

The  law  defines  the  duties  of  justices  and  constables  in 
the  matter  of  recovering  and  placing  or  disposing  of  goods 
or  money  lost.  When  the  justice  has  received  an  affidavit 
of  unclaimed  property  according  to  law,  he  shall  examine 
such  property  and  then  direct  that  the  same  be  sold. 

Upon  the  delivery  to  him  of  such  affidavit  (finder's 
affidavit)  the  justice  shall  cause  such  property  to  be 
opened  and  examined  in  his  presence,  and  a  true  in- 
ventory thereof  to  be  made,  and  shall  annex  to  such  in- 
ventory an  order,  under  his  hand,  that  the  property 
therein  described  be  sold  by  any  constable  of  the  pre- 
cinct where  the  same  shall  be,  at  public  auction. 
[7132.] 


2-10  JUSTICE   OF   THE   PEACE   GUIDE. 

§  423.  CONSTABLE'S  SALE  OF  UNCLAIMED  PROP- 
ERTY. 

When  he  has  received  the  order  of  the  justice  to  sell  th« 
unclaimed  property,  the  constable  proceeds  as  follows: 

It  shall  be  the  duty  of  such  constable  receiving  such 
inventory  and  order,  to  give  ten  days'  notice  of  the  sale 
by  posting  up  written  notices  thereof  in  three  or  more 
places  in  such  precinct,  and  to  sell  such  property  at  pub- 
lic auction,  to  the  highest  bidder,  in  the  same  manner 
as  provided  by  lav/  for  sales  under  execution  from  jus- 
tices' courts.  [7133.] 

§  429.    RETURN  OF  SALE. 

Upon  completing  the  sale,  the  constable  making  the 
same  shall  indorse  upon  the  order  aforesaid,  a  return 
of  his  proceedings  thereon,  and  return  the  same  to  the 
justice,  together  with  the  inventory,  and  the  proceeds  of 
sale,  after  deducting  his  fees.  [7134.] 

§  430.    THE  CONSTABLE'S  ELECTION. 

As  we  have  said,  the  constable  is  an  officer  elected  by  the 
people  in  the  same  manner  as  other  elective  officers,  his  elec- 
tion to  be  conducted  in  the  same  general  way  as  an  election 
of  justice  of  the  peace. 

The  election  of  constables  shall  be  conducted,  and  the 
return  of  such  election  made,  and  certificates  of  election 
issued  in  the  same  manner  as  in  elections  of  justice  of 
the  peace.  [6526.] 

§  431.    IN  CITIES  OF  FIVE  THOUSAND  POPULATION. 

There  shall  be  elected  at  the  general  election  to  be 
held  in  November,  1898,  and  biennially  thereafter  in 
cities  of  more  than  five  thousand  inhabitants,  only  one 
justice  of  the  peace  and  one  constable  and  no  more. 
[6532.] 

[For  elections,  see  justice's  election,  sections  6531-6534, 
6537,  Rem.  &  Bal.] 

§  432.    THE  CONSTABLE'S  SALARY. 

[See  justice's  salary,  sections  6535-6539,  Rem.  &  Bal.] 


CONSTABLES.  241 

§  433.    THE  CONSTABLE'S  OATH. 

Like  all  other  officers,  the  constable  is  required  to  make 
his  oath  to  properly  discharge  the  duties  of  his  office. 

Every  person  elected  or  appointed  a  constable  shall, 
within  twenty  days  after  receiving  his  certificate  of 
election,  take  an  oath,  before  any  person  authorized  to 
administer  oaths,  that  he  will  support  the  constitution 
of  the  United  States  and  the  laws  of  this  state,  and 
faithfully  discharge  and  perform  the  duties  of  his  office 
as  constable,  according  to  the  best  of  his  ability.  Such 
oath  shall  be  indorsed  on  the  back  of  the  certificate  of 
election  or  appointment,  and  filed,  together  with  the 
certificate,  in  the  office  of  the  auditor  of  the  proper 
county.  [6527.] 

§  434.    THE  CONSTABLE'S  BOND. 

The  constable  must  also  enter  into  bond  for  the  proper 
performance  of  his  duties. 

Every  person  elected  or  appointed  to  the  office  of  con- 
stable shall,  within  the  time  prescribed  for  filing  his 
oath  of  office,  enter  into  a  bond  to  the  proper  county, 
with  two  or  more  sureties,  residents  of  the  county,  in 
the  sum  of  one  thousand  dollars,  conditioned  that  he  will 
execute  all  process  to  hi™  directed  and  delivered,  and 
pay  over  all  moneys  received  by  him  by  virtue  of  his 
office,  and  in  every  respect  discharge  all  the  duties  of 
constable  according  to  law.  The  auditor  shall  indorse 
thereon  his  approval  of  the  sureties  therein  named. 
[6528.] 

§  435.    APPOINTMENT  TO  VACANT  OFFICE. 

Vacancies  before  election  in  the  office  of  constable  are 
filled  by  appointments  of  the  county  commissioners. 

All  vacancies  existing  in  the  offices  of  constable 
whether  happening  by  death,  resignation,  failure  to 
elect,  or  otherwise,  may  be  filled  by  appointment  by  the 
board  of  commissioners  of  the  proper  county;  and  every 
person  so  appointed  shall  hold  his  office  until  the  next 
election.  [6525.] 
M 


242  JUSTICE  OF  THE  PEACE  GUIDE. 

§  436.    SCHEDULE  OF  FEES. 

For  serving  an  arrest  warrant  in  a  criminal  action, 
or  making  an  arrest  in  cases  where  an  arrest 
ir  ay  be  lawfully  made  without  a  warrant,  be- 
sides mileage $2 . 00  - 

[6530.] 
For  other  services  he  shall  receive  the  same  fees  and 

mileage  as  is  paid  to  a  sheriff  for  like  services. 
Below  is  a  list  of  the  sheriff's  fees: 

For  service  of  each  summons  and  complaint,  and 
return  thereon  on  each  defendant,  besides  mile- 
age  60 

For  making  a  return  of  not  found  in  the  county 
upon  a  summons  besides  mileage,  actually 
traveled 30 

For  levying  each  writ  of  attachment  or  writ  of  exe- 
cution upon  real  or  personal  property,  besides 
mileage 60 

For  serving  writ  of  possession  or  restitution  without 
aid  of  the  county,  besides  mileage 1 . 50 

For  serving  writ  of  possession  or  restitution  with 
aid  of  the  county,  besides  mileage 2 . 00 

For  service  and  return  of  subpoena,  upon  each  per- 
son served  besides  mileage 25 

For  summoning  each  juror,  in  a  justice  of  the  peace 
court,  besides  mileage 25 

For  serving  an  arrest  warrant  in  a  civil  action  or 
proceeding,  besides  mileage 80 

For  serving  or  executing  any  other  writ  or  process 
in  a  civil  action  or  proceeding,  besides  mile- 
age   60 

For  taking  and  approving  any  bond,  in  a  civil  ac- 
tion or  proceeding,  required  by  law  to  be  taken 
or  approved  by  him,  except  indemnity  bonds . .  .50 

For  posting  each  notice,  besides  mileage 25 

For  each  mile  actually  and  necessarily  traveled  by 
him  in  going  to  or  returning  from  any  place  of 
service 10 

For  making  a  deed  to  land  sold  upon  execution  or 
order  of  sale,  or  other  decree  of  court,  to  be 
paid  by  the  purchaser 3. 00 

For  making  copy  of  any  complaint,  notice,  writ  or 
process,  necessary  to  complete  service,  per  folio 
ten  cents:  Provided,  that  he  shall  not  be  re- 
quired to  make  any  certified  copies  for  a  fee  of 
less  than 1 . 00 

[497.] 


CONSTABLES.  243 

§  437.    INCOMPLETE  BUSINESS  TO  SUCCESSOR. 

All  unfinished  business  in  the  constable's  hands  at  the  ex- 
piration of  his  term  of  office  shall  be  turned  over  to  his  suc- 
cessor in  the  manner  following : 

All  sheriffs,  constables,  and  coroners  in  the  state  of 
Washington,  upon  the  completion  of  their  term  of  of- 
fice and  the  qualification  of  their  successors,  shall  de- 
liver and  turn  over  to  such  successors  all  writs  and  other 
processes  in  their  possession  not  wholly  executed,  and 
all  personal  property  in  their  possession  or  under  their 
control  held  under  such  writs  or  processes,  and  take  re- 
ceipts therefor  in  duplicate,  one  of  which  shall  be  filed 
in  the  office  from  which  such  writ  or  process  issued  as 
a  paper  in  the  action,  which  receipt  shall  be  a  good  and 
sufficient  discharge  to  such  officer  of  and  from  further 
charge  of  the  execution  of  such  writs  and  processes; 
and  shall  also  deliver  to  their  successors  all  papers  and 
'  property  in  their  possession  or  under  their  control  as 
such  officers.  And  it  shall  be  the  duty  of  such  succes- 
sors to  execute  or  complete  the  execution  of  all  such 
writs  and  processes  so  delivered  to  them,  and  to  furnish 
and  complete  any  and  all  business  pertaining  to  such 
offices  so  turned  over  to  them.  [4005.] 


GENERAL  STATUTES. 

CHAPTER  I. 
BILLS  OF  SALE. 

|  438.  Bill  of  sale  to  be  recorded  or  possession  takanu 

§  439.  Certain  contracts  to  be  in  writing. 

§  440.  Affidavit  of  vendor  for  stock  of  goods. 

§  441.  Sale  of  goods  void — When. 

In  order  to  insure  that  the  transfers  of  personal  property 
shall  be  made  with  as  little  friction  and  trouble  as  possible, 
a  series  of  statutes  have  grown  up  around  this  part  of  our 
commercial  activities  by  which  the  law  pronounces  what  is 
a  good  sale  and  what  is  not. 

No  contract  for  the  sale  of  any  goods,  wares  or  mer- 
chandise, for  the  price  of  fifty  dollars  or  more,  shall  be 
good  and  valid,  unless  the  purchaser  shall  accept  and 
receive  part  of  the  goods  so  sold,  or  shall  give  some- 
thing in  earnest  to  bind  the  bargain,  or  in  part  payment, 
or  unless  some  note  or  memorandum  in  writing  be  made 
and  signed  by  the  party  to  be  charged  thereby,  or  by- 
some  person  thereunto  by  him  lawfully  authorized. 
[5290.] 

It  will  be  noticed  from  this  that  one  of  three  things  must 
be  done  to  make  a  contract  of  sale  for  goods  of  the  value 
of  fifty  dollars  or  more  binding:  1.  There  must  be  a  delivery 
and  acceptance  of  part  of  the  goods  sold ;  2.  Or  there  must 
be  some  money  paid  to  "bind  the  bargain";  or  3.  A  memo- 
randum of  the  sale  must  be  made  in  writing.  Where  either 
one  of  these  conditions  is  complied  with,  the  chance  of  dis- 
pute is  reduced  to  a  minimum. 

The  vendee  must  record  the  bill  of  sale  within  ten  days 
in  the  county  auditor's  office.  If  this  is  not  done,  and  the 
property  is  left  in  the  possession  of  the  vendor,  the  sale  is 
not  good  against  the  creditors  or  innocent  purchaser. 

(245) 


246  JUSTICE  OP  THE  PEACE  GUIDE. 

§  438.    BILL  OF  SALE  TO  BE  RECORDED  OR  POSSES- 
SION TAKEN. 

No  bill  of  sale  for  the  transfer  of  personal  property 
shall  be  valid,  as  against  existing  creditors,  or  innocent 
purchasers,  where  the  property  is  left  in  the  possession 
of  the  vendor,  unless  the  said  bill  of  sale  be  recorded 
in  the  auditor's  office  of  the  county  in  which  the  prop- 
erty is  situated,  within  ten  days  after  such  sale  shall  be 
made.  [5291.] 

It  will  be  noticed  from  this  that  the  recording  of  the  bill 
of  sale  should  be  made  in  the  county  auditor's  office  where 
the  property  is  situated. 

§  439.    CERTAIN  CONTRACTS  TO  BE  IN  WRITING. 

The  following  is  a  list  of  the  contracts  which  the  law  re- 
quires to  be  in  writing  and  signed  by  the  party  who  may  be 
charged  with  the  performance  of  the  contract: 

In  the  following  cases,  specified  in  this  section,  any 
agreement,  contract  or  promise,  shall  be  void  unless 
such  agreement,  contract  or  promise,  or  some  note  or 
memorandum  thereof,  be  in  writing,  and  signed  by  the 
party  to  be  charged  therewith,  or  by  some  person  there- 
unto by  him  lawfully  authorized,  that  is  to  say: 

1.  Every  agreement  that  by  its  terms  is  not  to  be  per- 
formed in  one  year  from  the  making  thereof; 

2.  Every  special  promise  to  answer  for  the  debt,  de- 
fault, or  misdoings  of  another  person; 

3.  Every  agreement,  promise  or  undertaking  made 
upon  consideration  of  marriage,  except  mutual  promises 
to  marry; 

4.  Every  special  promise  made  by  an  executor  or  ad- 
ministrator to  answer  damages  out  of  his  own  estate ; 

5.  An  agreement  authorizing  or  employing  an  agent 
or  broker  to  sell  or  purchase  real  estate  for  compensa- 
tion or  a  commission. 

§  440.    AFFIDAVIT    OF    VENDOR    FOR    STOCK    OF 
GOODS. 

The  law  requires  that  when  one  buys  a  stock  of  goods 
in  bulk,  as,  for  instance,  the  purchase  of  the  contents  of  a 
grocery  store,  he  must,  before  he  pays  anything  for  the 


BILLS  OP  SALE.  247 

stock,  require  from  the  seller  a  sworn  statement  of  all  the 
creditors  of  the  seller,  their  names  and  addresses,  and  the 
amount  which  he  owes  to  each  of  the  said  creditors. 

It  shall  be  the  duty  of  every  person  who  shall  bargain 
for,  or  purchase  any  stock  of  goods,  wares  or  merchan- 
dise in  bulk,  for  cash,  or  on  credit,  before  paying  to  the 
vendor,  or  his  agent,  or  representative,  or  delivering  to 
the  vendor  or  his  agent,  any  part  of  the  purchase  price 
thereof,  or  any  promissory  note,  or  other  evidence  there- 
for, to  demand  of  and  receive  from  such  vendor,  or 
agent,  or  if  the  vendor  or  agent  be  a  corporation,  then 
from  the  president,  vice-president,  secretary  or  manag- 
ing agent  of  such  corporation,  a  written  statement, 
sworn  to  substantially  as  hereinafter  provided,  of  the 
names  and  addresses  of  all  the  creditors  of  said  vendor, 
to  whom  said  vendor  may  be  indebted,  together  with  the 
amount  of  the  indebtedness  due  or  owing,  and  to  be- 
„  come  due  or  owing,  by  said  vendor  to  each  of  such  cred- 
itors ;  and  it  shall  be  the  duty  of  said  vendor,  or  agent, 
to  furnish  such  statement,  which  shall  be  verified  by  an 
oath  to  the  following  effect : 

FORM  OF  VENDOR'S  AFFIDAVIT. 

State  of  Washington, 
County , — ss. 

Before  me  personally  appeared [vendor  or 

agent,  as  the  case  may  be]  who  being  by  me  first  duly 
sworn  upon  his  oath  doth  depose  and  say  that  the  fore- 
going statement  contains  the  names  of  all  the  creditors 

of  [the  name  of  the  vendor]  together  with 

their  addresses,  and  that  the  amount  set  opposite  each 
of  said  respective  names  is  the  amount  now  due  and 
owing,  and  which  shall  become  due  and  owing  by 

[vendor]  to  such  creditors,  and  that  there  are 

no  creditors  holding  claims  due,  or  which  shall  become 
due  for  or  on  account  of  goods,  wares  or  merchandise 
purchased  upon  credit  or  on  account  of  morey  borrowed 
to  carry  on  the  business  of  which  said  goods  are  a  part, 
other  than  as  set  forth  in  said  statement,  and  in  this  affi- 
davit, are  within  the  personal  knowledge  of  ailiant. 

Subscribed  and  sworn  to  before  me  this  ....  day  of 

,19 

[Title  of  officer  taking  oath.]     [5296.] 


248  JUSTICE  OP  THE  PEACE  GUIDE. 

§  441.    SALE  OF  GOODS  VOID— WHEN. 

The  breach  of  the  foregoing  statute,  in  so  far  as  it  leaves 
the  creditor  without  protection,  is  void: 

Whenever  any  person  shall  bargain  for,  or  purchase 
any  stock  of  goods,  wares  or  merchandise  in  bulk,  for 
cash,  or  on  credit,  and  shall  pay  any  part  of  the  pur- 
chase price,  or  execute  or  deliver  to  the  vendor  thereof, 
or  to  his  order,  or  to  any  person  for  his  use,  any  promis- 
sory note,  or  other  evidence  of  indebtedness  for  said 
purchase  price,  or  any  part  thereof,  without  first  having 
demanded  and  received  from  said  vendor,  or  from  his 
agent,  the  statement  provided  for  in  section  1  (above) 
[440]  of  this  act  and  verified  as  there  provided,  and 
without  paying  or  seeing  to  it  that  the  purchase  money 
of  the  said  property,  is  applied  to  the  bona  fide  claim  of 
the  creditors  of  the  vendor  as  shown  upon  such  verified 
statement,  share  and  share  alike,  such  sale,  or  transfer 
shall  be  fraudulent  and  void.  [5297.] 


THE  LAW  OF  WILLS  AND  DESCENT  OP  PROPERTY.  249 


CHAPTER  II. 
THE  LAW  OF  WILLS  AND  DESCENT  OP  PROPERTY. 

§  442.  There  must  be  two  witnesses. 

§  443.  When  witness  is  beneficiary. 

§  444.  Devise  of  land. 

§  445.  Signing  testator's  name  for  him« 

§  446.  When  will  is  revoked. 

§  447.  Construction. 

448.  Real  property. 

449.  When  the  real  estate  does  not  descend  by  devise. 

450.  Surviving  spouse  and  child. 

451.  Surviving  spouse  and  parents. 

452.  Surviving  brothers  and  sisters. 

453.  Surviving  spouse  and  no  issue  nor  near  blood. 
8  454.  Next  of  kin. 

§  455.  Deceased  child's  estate  shared  by  survivors. 

§  456.  Issue  of  same  parent. 

5  457.  When  estate  goes  to  the  state. 

§  458.  The  inheritance  by  illegitimate  children. 

S  459.  How  personal  property  is  distributed. 

The  justice  of  the  peace,  whether  he  be  a  lawyer  or  not, 
is  generally  credited  with  some  knowledge  of  the  rudiments 
of  legal  affairs,  and  is  frequently  called  upon  to  perform 
legal  services  to  his  neighbors  which  are  entirely  aside  from 
his  judicial  capacity.  Not  the  least  frequent  of  such  ser- 
vices is  that  of  drawing  wills.  When  one  considers  that  a 
will  is  often  drawn  in  an  emergency,  often  when  the  tes- 
tator is  lying  halfway  between  this  world  and  the  next,  it 
is  plainly  the  duty  not  only  of  the  justice  of  the  peace,  but 
also  of  any  man  who  can  read  and  write,  to  know  how  to 
act  at  such  a  crisis.  To  many  people,  making  the  will  is 
like  putting  on  the  burial  shroud;  they  avoid  it  until  the 
grip  of  sickness  reminds  them  that  they  are  mortal  like  any- 
body else.  Then  there  is  not  time  to  find  a  lawyer;  yet, 
when  considerable  property  rights  are  involved,  the  best  in- 
terests of  all  require  that  a  will  be  made. 

There  is  really  nothing  mysterious  about  drawing  a  will. 
A  very  simple  statement  of  the  testator's  wishes  is  sufficient, 


250  JUSTICE  OP  THE  PEACE  GUIDE. 

provided  the  will  is  properly  attested  and  that  it  appears 
that  the  testator  was  of  sound  mind  when  he  executed  it. 

§  442.    THERE  MUST  BE  TWO  WITNESSES. 

The  signature  of  the  testator  must  be  witnessed  by  two 
competent  persons.  By  competent  persons  is  meant  those 
who  are  qualified  to  come  into  court  and  give  proper  tes- 
timony concerning  the  state  of  the  testator's  mind  at  the 
time  he  made  the  will,  competent  to  hear  the  will  read  and 
understand  it,  and  able  to  swear  that  the  signature  is  the  sig- 
nature of  the  testator.  The  testator  making  the  will  signs 
his  name  in  the  presence  of  the  witnesses  and  the  witnesses 
sign  theirs. 

§  443.    WHEN  WITNESS  IS  BENEFICIARY. 

Suppose  one  of  the  witnesses  is  to  receive  some  legacy  un- 
der the  will.  In  that  case,  the  legacy  to  such  witness  is 
void  unless  there  are  two  other  competent  witnesses  to  the 
will.  The  purpose  of  the  law  is  to  get  two  disinterested  wit- 
nesses, who  shall  have  no  motive  in  testifying  to  the  genuine- 
ness of  the  signature  and  will. 

§  444.    DEVISE  OF  LAND. 

When  the  testator  devises  his  land  it  shall  be  held  to  con- 
vey all  of  the  estate  of  the  devisor  in  the  said  land.  It  is 
as  if  he  had  given  a  deed  to  the  devisee  or  the  person  inherit- 
ing the  same.  But  if  the  testator  wishes  to  give  any  estate 
to  another  person  for  the  rest  of  that  person's  life,  the  dev- 
isee only  holds  for  life,  and  at  his  death  the  property  reverts 
to  the  heirs  at  law  of  the  testator.  If  the  testator  wishes 
to  let  the  property  go  to  the  heirs  of  the  person  to  whom 
he  gives  the  life  estate,  he  must  specially  devise  the  re- 
mainder, as  it  is  called,  to  such  heirs.  Otherwise,  as  we  have 
seen,  the  property  reverts  to  the  lawful  heirs  of  the  man 
making  the  will. 

§  445.     SIGNING  TESTATOR'S  NAME  FOR  HIM. 

Often,  when  a  man  is  in  the  last  extreme  of  weakness  and 
sickness,  his  mind  may  be  clear  enough  to  order  the  disposal 


THE  LAW  OP  WILLS  AND  DESCENT  OF  PROPERTY.  251 

of  his  real  and  personal  property  after  death,  but  he  him- 
self may  be  too  weak  to  make  the  effort  necessary  to  write 
his  name  at  the  conclusion  of  the  will.  Another  person 
thereto  may  thereupon  sign  the  testator's  name  for  him,  but 
the  person  so  signing  the  will  must  subscribe  himself  as  a  wit- 
ness to  the  said  will,  and  state  that  he  signed  the  testator's 
name  at  the  request  of  the  said  testator. 

§  446.    WHEN  WILL  IS  REVOKED. 

No  written  will  is  considered  revoked  until  there  is  a  later 
will  in  writing,  or  unless  the  testator  shall  direct  that  the 
first  will  be  burned,  destroyed  and  obliterated.  Marriage, 
however,  will  operate  to  revoke  a  will  when  it  appears  that 
the  wife  has  been  deprived  in  the  will  of  her  marital  rights 
in  the  husband's  property.  If  provision  has  been  made  for 
her  by  marriage  settlement,  or  if  she  is  provided  for  in  the 
will,  or  so  mentioned  therein  as  to  show  that  the  testator 
had  intended  to  make  no  such  provision,  the  will  will  not 
therefore  be  considered  automatically  revoked.  In  a  state 
like  Washington,  where  the  wife  enjoys  a  community  in- 
terest in  the  property  of  her  husband,  it  is  of  the  first  im- 
portance that  she  should  be  particularly  mentioned  in  the 
will  and  not  ignored. 

§  447.    CONSTRUC-ZION. 

The  courts,  when  the  will  is  probated,  seek  to  determine 
the  real  intention  of  the  testator,  and  for  this  reason  will 
give  every  reasonable  construction  to  the  provisions.  Yet 
much  difficulty  will  be  avoided  if  the  draftsman  will  state 
the  testator's  wishes  in  plain,  clear  and  careful  language  and 
not  lose  himself  and  his  ideas  in  a  maze  of  legal  rigmarole. 

§  448.     REAL  PROPERTY. 

A  clear  understanding  of  the  laws  of  descent  are  useful 
to  all  men,  and  particularly  to  those  who  perform  the  pecu- 
liar duties  of  a  justice  of  the  peace.  Not  because  they  are 
attached  inherently  to  that  office,  for,  as  a  matter  of  fact, 
the  justice  of  the  peace  has  no  jurisdiction  over  matters 
of  wills  and  real  estate;  that  is  all  within  the  particular 


252  JUSTICE  OF   THE  PEACE  GUIDE. 

sphere  of  the  superior  court  in  probate.  Yet,  as  we  have 
seen,  the  justice,  especially  in  rural  parts,  is  usually  the 
guide,  philosopher  and  friend  of  the  community,  and  a  word 
of  advice  and  information  on  a  matter  of  so  important 
a  character  to  all  property  holders  as  the  future  disposi- 
tion of  their  property  at  death  will  often  prove  invaluable 
to  such  persons  in  making  up  their  minds  what  they  wish 
done  with  the  property. 

§  449.    WHEN  THE  REAL  ESTATE  DOES    NOT    DE- 
SCEND BY  DEVISE. 

The  following  is  the  law  governing  the  disposal  of  real 
property  when  the  deceased  owner  has  not  devised  the  same. 
It  will  be  noticed  that  the  distribution  is  subject  to  the 
payment  first  of  the  debts  of  the  decedent. 

§  450.    SURVIVING  SPOUSE  AND  CHILD. 

If  the  decedent  leaves  a  surviving  husband  or  wife  and 
•only  one  child,  or  the  lawful  issue  of  one  child,  the  estate  goes 
in  equal  shares  to  the  surviving  husband,  or  wife  and  child, 
or  issue  of  such  child.  If  the  decedent  leaves  a  surviving 
husband  or  wife,  and  more  than  one  child  living  and  the 
lawful  issue  of  one  or  more  deceased  children,  one-third  goes 
to  the  surviving  husband  or  wife,  and  the  remainder  in  equal 
shares  to  his  children  and  to  the  lawful  issue  of  any  de- 
ceased child  by  right  of  representation.  If  there  be  no  child 
of  the  decedent  living  at  his  death,  the  remainder  goes 
to  all  of  his  lineal  descendants;  and  if  all  the  descendants 
are  in  the  same  degree  of  kindred  to  the  decedent,  they 
share  equally;  otherwise  they  take  according  to  the  right 
of  representation. 

§  451.    SURVIVING  SPOUSE  AND  PARENTS. 

If  the  decedent  leaves  no  issue,  the  estate  goes  in  equal 
shares  to  the  surviving  husband  or  wife,  and  to  the  dece- 
dent's father  and  mother,  if  both  survive.  If  there  be  no 
father  or  mother,  then  one-half  goes  in  equal  shares  to  the 
brothers  and  sisters  of  the  decedent  and  to  the  children  of 
any  deceased  brothers  or  sisters,  by  right  of  representa- 


THE  LAW  OP  WILLS  AND  DESCENT  OF  PROPERTY.  253 

tion.     If  decedent  leaves  no  issue,  nor  husband,  nor  wife, 
the  estate  must  go  to  his  father  and  mother. 

§  452.    SURVIVING  BROTHERS  AND  SISTERS. 

If  there  be  no  issue,  nor  husband,  nor  wife,  nor  father  and 
mother,  nor  either,  then  in  equal  shares  to  the  brothers  and 
sisters  of  the  decedent,  and  to  the  children  of  any  deceased 
brother  or  sister  by  right  of  representation. 

§  453.    SURVIVING    SPOUSE    AND    NO    ISSUE    NOR 
NEAR  BLOOD. 

If  the  decedent  leaves  a  surviving  husband  or  wife  and 
no  issue,  and  no  father  nor  mother,  nor  brother,  nor  sister, 
the  whole  estate  goes  to  the  surviving  husband  or  wife. 

§454.    NEXT  OF  KIN. 

If  the  decedent  leaves  no  issue,  nor  husband,  nor  wife, 
and  no  father  nor  mother,  nor  brother,  nor  sister,  the  estate 
must  go  to  the  next  of  kin,  in  equal  degree,  excepting  that 
when  there  are  two  or  more  collateral  kindred  in  equal  de- 
gree, but  claiming  through  different  ancestors,  those  who 
claim  through  the  nearest  ancestor  must  be  preferred  to 
those  claiming  through  an  ancestor  more  remote,  however. 

§  455.    DECEASED    CHILD'S    ESTATE    SHARED    BY 
SURVIVORS. 

If  the  decedent  leaves  several  children,  or  one  child  and 
the  issue  of  one  or  more  other  children,  and  any  such  surviv- 
ing child  dies  under  age  and  not  having  been  married,  all 
the  estate  that  comes  to  the  deceased  child  by  inheritance 
from  such  decedent  descends  in  equal  shares  to  the  other 
children  of  the  same  parent  and  to  the  issue  of  any  of  such 
other  children  who  are  dead,  by  right  of  representation. 

§  456.    ISSUE  OF  SAME  PARENT. 

If  at  the  death  of  such  child,  who  dies  under  age,  not 
having  been  married,  all  the  other  children  of  his  parents 
are  also  dead,  and  any  of  them  have  left  issue,  the  estate 
that  came  to  such  child  by  inheritance  from  his  parent  de- 
scends to  the  issue  of  all  other  children  of  the  same  parent 


254f  JUSTICE  OP  THE  PEACE  GUIDE. 

and  if  all  the  issue  are  in  the  same  degree  of  kindred  to  the 
child,  they  share  the  estate  equally;  otherwise  they  take 
according  to  the  right  of  representation. 

§  457.    WHEN  ESTATE  GOES  TO  THE  STATE. 

If  the  decedent  leaves  no  husband,  wife  or  kindred, 
the  estate  escheats  to  the  state,  for  the  support  of  com- 
mon schools,  in  the  county  in  which  the  decedent  re- 
sided during  lifetime  or  where  the  estate  may  be  situ- 
ated. [1341.] 

§  458.    THE  INHERITANCE  BY  ILLEGITIMATE  CHIL- 
DREN. 

One  of  the  most  advanced  and  humane  provisions  of  the 
law  is  that  which  provides  for  the  rights  of  illegitimate 
children.  From  being  outcasts  and  lying  under  many  civil 
disabilities,  to-day  justice  measures  to  them  a  portion  with 
the  children  begotten  in  lawful  wedlock.  For  the  preven- 
tion of  fraud,  however,  certain  rules  are  necessary.  The 
father,  in  the  presence  of  a  competent  witness,  shall  ac- 
knowledge himself  to  be  the  father  of  the  child.  In  all 
cases  the  child  is  considered  the  heir  of  his  mother.  But 
for  the  child  to  claim  any  part  of  the  estate  which  the 
father  or  mother's  kindred  may  have  left,  as  the  lineal  repre- 
sentative of  his  father,  as  set  forth  in  the  statute  govern- 
ing children  born  in  lawful  marriage,  the  parents  must  have 
intermarried  and  the  child  adopted  into  the  family. 

§  459.    HOW    PERSONAL    PROPERTY    IS    DISTRIB- 
UTED. 

When  any  person  shall  die  possessed  of  any  separate  per- 
sonal estate  or  of  any  right  or  interest  therein  not  lawfully 
disposed  of  by  his  last  will,  the  same  shall  be  applied  and 
distributed  as  follows: 

1.  The  widow,  if  any,  shall  be  allowed  all  articles 
of  her  apparel  or  ornament,  according  to  the  degree  and 
estate  of  her  husband,  and  such  provisions  and  other 
necessaries  for  the  use  of  herself  and  family  under 
her  care,  as  shall  be  allowed  and  ordered  in  pursuance 
of  the  provisions  of  any  law;  and  this  allowance  shall 
be  made  as  well  when  the  widow  receives  the  provision 


THE  LAW  OF  WILLS  AND  DESCENT  OP  PROPERTY.  255 

made  for  her  in  the  will  of  her  husband  as  when  he  dies 
intestate. 

2.  The  personal  estate  remaining  after  such  allowance 
shall  be  applied  to  the  payment  of  the  debts  of  the 
deceased,  with  the  charges  for  the  funeral  and  the 
settling  of  the  estate. 

3.  The  residue,  if  any,  of  the  personal  estate,  shall  be 
distributed  among  the  same  persons  as  would  be  entitled 
to  the  real  estate  by  this  act,  and  in  the  same  propor- 
tion as  provided,  excepting  as  herein  further  provided. 

4.  If  the  intestate  leave  a  husband  and  issue,  the  hus- 
band shall  be  entitled  to  one-half  the  residue. 

5.  If  there  be  no  issue,  the  husband  shall  be  entitled 
to  the  whole  of  the  residue. 

6.  If  the  intestate  leave  a  widow  and  issue,  the  widow 
shall  be  entitled  to  one-half  of  said  residue. 

7.  If  there  be  no  issue  the  widow  shall  be  entitled  to 
the  whole  of  the  residue. 

8.  If  there  be  no  husband,  widow  or  kindred  of  the 
intestate,  the  said  personal  estate  shall  escheat  to  the 
state,  for  the  use  of  common  schools  in  the  particular 
county  in  which  the  intestate  shall  have  resided  at 
time  of  death.    [1364.] 


26S  JUSTICE  OP   THE  PEACE  GUIDE. 


CHAPTER  III. 
COMMUNITY  PROPERTY. 

8  460.  The  husband's  separate  property. 

§  4-61.  The  wife's  separate  property. 

§  462.  What  is  community  property. 

§  463.  The  husband  to  manage  real  property. 

This  is  one  branch  of  the  law  in  which  the  justice  should 
have  some  particular  knowledge,  for  the  reason  that  many 
of  the  decisions  which  he  will  be  called  upon  to  render  will 
affect  the  property  of  both  the  husband  and  the  wife,  and 
will  often  be  a  judgment  against  the  joint  property. 

§  460.  THE  HUSBAND'S  SEPARATE  PROPERTY. 

Property  and  pecuniary  rights  owned  by  the  husband 
before  marriage,  and  that  acquired  by  him  afterwards 
by  gift,  bequest,  devise  or  descent,  with  the  rents,  is- 
sues, and  profits  thereof,  shall  not  be  subject  to  the 
debts  or  contracts  of  his  wife,  and  he  may  manage,  lease, 
sell,  convey,  encumber,  or  devise,  by  will,  such  property 
without  the  wife  joining  in  such  management,  aliena- 
tion, or  encumbrance,  as  fully  and  to  the  same  effect  as 
though  he  were  unmarried.  [5915.] 

§  461.  THE  WIFE'S  SEPARATE  PROPERTY. 

The  property  and  pecuniary  rights  of  every  married 
woman  at  the  time  of  her  marriage,  or  afterwards  by 
gift,  devise,  or  inheritance,  with  the  rents,  issues  and 
profits  thereof,  shall  not  be  subject  to  the  debts  or 
contracts  of  her  husband,  and  she  may  manage,  lease, 
sell,  convey,  encumber  or  devise  by  will  such  property, 
to  the  same  extent  and  in  the  same  manner  that  her 
husband  can  property  belonging  to  him.  [5916.] 

§  462.    WHAT  IS  COMMUNITY  PROPERTY. 

Property,  not  acquired  or  owned  as  prescribed  in 
the  next  two  preceding  sections,  acquired  after  mar- 
riage by  either  husband  or  wife,  or  both,  is  community 
property.  The  husband  shall  have  the  management 
and  control  of  community  personal  property,  with  a 
like  power  of  disposition  as  he  has  of  his  separate  per- 
sonal property,  except  that  he  shall  not  devise  by  will 
more  than  one-half  thereof.  [5917.] 


COMMUNITY    PROPERTY.  257 

§  463.  THE  HUSBAND  TO  MANAGE  REAL  PROP- 
ERTY. 

The  husband  has  the  management  and  control  of  the 
community  real  property,  but  he  shall  not  sell,  convey, 
or  encumber  the  community  real  estate,  unless  the  wife 
join  with  him  in  executing  the  deed  or  other  instru- 
ment of  conveyance  by  which  the  real  estate  is  sold, 
conveyed,  or  encumbered,  and  such  deed  or  other  in- 
strument of  conveyance  must  be  acknowledged  by  him 
and  his  wife:  Provided,  however,  that  all  such  com- 
munity real  estate  shall  be  subject  to  the  liens  of  me- 
chanics and  others  for  labor  and  materials  furnished 
in  erecting  structures  and  improvements  thereon  as 
provided  by  law  in  other  cases,  to  liens  of  judgments 
recovered  for  community  debts,  and  to  sale  on  execution 
issued  thereon.  [5918.] 

It  will  be  noted  from  the  above  statutes  that  the  husband 
in  .the  case  both  of  the  real  and  personal  property  is  given 
the  management  and  control  thereof,  subject  to  divers  re- 
strictions which  are  designed  to  protect  the  community 
rights  of  the  wife. 

The  property  which  either  spouse  is  possessed  of  before 
entering  into  the  marriage  is  the  separate  property  over 
which  he  or  she  has  control  without  the  interference  of 
the  other.  To  this  class  belong  also  the  properties  which 
may  fall  to  either  spouse  through  inheritance,  as  by  gift, 
descent,  devise  or  bequest. 

In  drafting  deeds  and  other  instruments  affecting  the 
property  of  married  persons,  it  is  important  to  ascertain 
when  and  how  the  property  was  acquired  and,  as  will  be 
seen  from  the  above,  when  it  appears  that  the  property  is 
such  as  both  spouses  have  equal  rights  in  it,  both  must 
join  in  signing  and  acknowledging  all  such  instruments. 
Where  the  wife  is  absent,  or  the  husband,  as  the  case  may 
be,  or  unable  to  be  present  to  acknowledge  a  deed,  it  is 
the  procedure  for  the  absent  spouse  to  appoint  the  other 
his  or  her  attorney  in  fact,  granting  a  power  of  attorney 
to  sign  his  or  her  name,  and  such  signature  is  made  for  the 
absent  spouse  by  signing  the  name  and  then  beneath  it, 

"By   ,  her  attorney  in  fact." 

17 


258  JUSTICE  OP  THE  PEACE  GUIDE. 


CHAPTER  IV. 
CONCERNING  DEEDS. 

§  464.  The  grantor. 

§  465.  The  grantee. 

§  466.  The  warranty  deed. 

§  467.  Consideration. 

§  468.  The  quitclaim  deed. 

§  469.  The  bargain  and  sale  deed. 

§  470.  The  form  of  acknowledgment. 

§  471.  Conveyances  by  and  between  husband  and  wife. 

§  472.  The  mortgage. 

§  473.  The  satisfaction  of  mortgages. 

§  474.  Penalty  for  failing  to  satisfy  mortgage. 

A  deed  is  a  conveyance  in  writing  of  real  estate  or  any 
interest  therein,  signed  by  the  party  bound  by  the  same, 
and  acknowledged  before  some  person  authorized  by  law  to 
take  the  acknowledgment  of  deeds;  a  notary  public,  as  a 
general  thing. 

Title  to  real  estate  is  not  conveyed  by  word  of  mouth. 
In  fact,  the  practice  of  conveying  estate  in  real  property 
has  become  much  more  precise  and  particular  as  time  has 
gone  on;  although  the  wording  of  the  instrument  itself  is 
much  more  simple  than  under  some  of  the  older  laws  of 
England.  In  that  country  they  swung  from  the  extreme 
simplicity  of  conveying  by  plucking  a  twig  or  piece  of  sod 
from  the  ground  to  the  extreme  complexity  of  a  blanket- 
sized  sheepskin  full  of  all  sorts  of  averments.  The  idea  has 
persisted,  however,  of  conveying  by  deed,  and  the  law 
of  this  state  specifically  requires  that  such  conveyance  be 
made  by  a  written  instrument  executed  as  above  set  forth. 

§  464.    THE  GRANTOR 

Is  the  person  who  is  making  the  deed — that  is,  conveying 
title  to  the  property. 

§  465.    THE  GRANTEE 

Is  the  person  to  whom  title  to  the  property  is  conveyed. 
iWhen  the  grantors  are  husband  and  wife  it  is  proper 


CONCERNING  DEEDS.  259 

to  say,  "Napoleon  Wing  and  Josephine  Wing,  his  wife." 
When  the  grantor  is  a  single  man,  it  simplifies  the  record 
to  allege  that  the  grantor  is  "  Wellesley  Wellington,  a  bache- 
lor," and  in  the  case  of  an  unmarried  woman,  "Sophia 
Sapho,  a  spinster."  The  observance  of  this  precaution 
will  do  away  with  the  necessity  of  subsequent  purchasers  of> 
the  property  having  to  secure  affidavits  as  to  the  domestic 
status  of  the  parties. 

§  466.    THE  WARRANTY  DEED. 

This,  in  simple  language,  is  a  deed  in  which  th«  grantor 
warrants  that  the  title  is  in  him  and  that  he  can  lawfully 
convey  the  same;  in  the  words  of  the  statute,  that  he  has 
an  "indefeasible  estate  in  fee  simple"  in  the  premises. 
Here  is  the  statute  with  the  statutory  form: 

Warranty  deeds  for  the  conveyance  of  land  may  be 
substantially  in  the  following  form: 

The  grantor  [here  insert  the  name  or  names  and  place 
of  residence]  for  and  in  consideration  of  [here  insert 
consideration]  in  hand  paid,  convey  and  warrant  to 
[here  insert  the  grantee 's  name  or  names]  the  following 
described  real  estate  [here  insert  description]  situated 
in  the  county  of ,  state  of  Washington. 

Dated  this day  of 19 


[Don't   forget   the    acknowledgment.] 

Every  deed  in  substance  in  the  above  form,  when 
otherwise  duly  executed,  shall  be  deemed  and  held  a 
conveyance  in  fee  simple  to  the  grantee,  his  heirs  and 
assigns,  with  covenants  on  the  part  of  the  grantor : — 

1.  That  at  the  time  of  making  and  delivery  of  such 
deed  he  was  lawfully  seised  of  an  indefeasible  estate 
in  fee  simple  in  and  to  the  premises  therein  described, 
and  had  good  right  and  full  power  to  convey  the  same; 

2.  That  the  same  were  then  free  from  all  encum- 
brances ; 

3.  That  he  warrants  to  the  grantee,  his  heirs  and  as- 
signs, the  quiet  and  peaceable  possession  of  such  prem- 
ises, and  will  defend  the  title  thereto  against  all  per- 
sons who  may  lawfully  claim  the  same;  and  such  cove- 
nants shall  be  obligatory  upon  any  grantor,  his  heirs 


260  JUSTICE  OP   THE  PEACE  GUIDE. 

and  personal  representatives,  as  fully  and  with  like 
effect  as  if  written  at  full  length  in  such  deed.     [8747.] 

§  467.     CONSIDERATION 

Means  generally  the  value  which  the  grantor  receives  for 
the  property.  It  may  be  symbolical,  as  "one  dollar,"  or 
it  may  state  the  full  purchase  price  of  the  land. 

§  468.    THE  QUITCLAIM  DEED. 

This  deed  is  often  given  by  a  grantor  having  some  in- 
terest in  the  estate  and  whose  removal  from  the  record  is 
necessary  to  clear  the  title. 

Quitclaim  deeds  may  be  in  substance  in  the  following 
form: 

The  grantor  [here  insert  name  or  names  and  place  of 
residence]  for  the  consideration  [here  insert  the  consid- 
eration] convey  and  quitclaim  to  [here  insert  grantee's 
name  or  names]  all  interest  in  the  following  described 
real  estate  [here  insert  description]  situated  in  the 
county  of ,  state  of  Washington. 

Dated  this day  of 19 


Every  deed  in  substance  in  form  as  prescribed  in  this 
section,  when  otherwise  duly  executed,  shall  be  deemed 
and  held  a  good  and  sufficient  conveyance,  release  and 
quitclaim  to  the  grantee,  his  heirs  and  assigns,  in  fee 
of  all  the  then  existing  legal  or  equitable  rights  of  the 
grantor  in  the  premises  therein  described,  but  shall  not 
extend  to  the  after-acquired  title  unless  words  are  added 
expressing  such  intention.  [8749.] 

§  469.    THE  BARGAIN  AND  SALE  DEED. 

Bargain  and  sale  deeds  for  the  conveyance  of  land  may 
be  substantially  in  the  following  form: 

The  grantor  [name  or  names  and  residence]  for  [and] 
|n  consideration  of  [here  insert  consideration]  in  hand 
paid,  bargain,  sell,  and  convey  to  [here  insert  the  gran- 
tee's name  or  names]  the  following  described  real  es- 
tate [here  insert  description]  situated  in  the  county  of 
.......  state  of  Washington. 

Dated  this day  of ,19 


CONCERNING   DEEDS.  2G1 

Every  deed  in  substance  in  the  above  form  shall  con- 
vey to  the  grantee,  his  heirs  or  other  legal  representa- 
tives, an  estate  of  inheritance  in  fee  simple,  and  shall 
be  adjudged  an  express  covenant  to  the  grantee,  his 
heirs  or  other  legal  representatives,  to  wit,  that  any 
grantor  was  seised  of  an  indefeasible  estate  in  fee  sim- 
ple, free  from  encumbrance,  done  or  suffered  from  the 
grantor,  except  the  rents  and  services  that  may  be  re- 
served, as  also  for  quiet  enjoyment  against  the  grantor, 
his  heirs  and  assigns,  unless  limited  by  express  words 
contained  in  such  deed;  and  the  grantee,  his  heirs, 
executors,  administrators  and  assigns,  may,  in  any  ac- 
tion, recover  for  breaches,  as  if  such  covenants  were 
expressly  inserted.  [8748.] 

It  was  the  old  custom  to  seal  all  such  instruments  with 
the  seals  of  the  parties,  but  this  formality  has  been  ex- 
pressly abolished  by  law. 

The  use  of  private  seals  upon  all  deeds,  mortgages, 
leases,  bonds,  and  other  instruments,  and  contracts  in 
writing,  is  hereby  abolished,  and  the  addition  of  a  pri- 
vate seal  to  any  such  instrument  or  contract  in  writing, 
hereafter  made,  shall  not  affect  its  validity  or  legality 
in  any  respect.  [8751.] 

It  is  not  necessary  that  a  deed  should  be  witnessed  in  this 
state. 

§  470.    THE  FORM  OF  ACKNOWLEDGMENT. 

A  certificate  of  acknowledgment  substantially  in  the  fol- 
lowing form  shall  be  sufficient: 

State  of  Washington, 
County  of  , — ss. 

I  [here  give  name  of  officer  and  official  title],  do 

hereby  certify  that  on  this  ....  day  of 19. . . ., 

personally  appeared  before  me  [name  of  grantor,  and  if 
acknowledged  by  wife,  her  name  and  add  "his  wife"] 
to  me  known  to  be  the  individual  or  individuals  de- 
scribed in  and  who  executed  the  within  instrument,  and 
acknowledged  that  he  [she  or  they]  signed  and  sealed 
the  same  as  his  [her  or  their]  free  and  voluntary  act 
and  deed,  for  the  uses  and  purposes  therein  mentioned. 

Given  under  my  hand  and  official  seal  this day 

of ,  A.  D.  19 

[Signature  of  officer.] 


262  JUSTICE  OP   THE  PEACE  GUIDE. 

§  471.     CONVEYANCES  BY  AND  BETWEEN  HUSBAND 
AND  WIFE. 

The  husband  and  wife  may  convey  his  or  her  community 
right  to  the  other  without  prejudice  to  the  existing  equity 
of  creditors  in  and  to  the  property.  The  form  of  the  convey- 
ance does  not  recite  the  married  state,  but  is  simply,  "Tim- 
,othy  Twig"  to  "Annie  Twig,"  and  the  same  is  acknowl- 
edged as  by  a  single  person. 

The  separate  estate  of  either  husband  or  wife  may  be 
conveyed  by  the  one  or  other  through  power  of  attorney 
to  either,  providing  the  same  is  properly  acknowledged  and 
certified  according  to  law.  In  the  same  manner,  the  com- 
munity estate  may  be  conveyed  through  power  of  attorney 
to  either. 

A  husband  may  make  and  execute  a  letter  of  attor- 
ney to  wife,  or  the  wife  may  make  and  execute  a  letter 
of  attorney  to  the  husband,  authorizing  the  sale  or 
other  disposition  of  his  or  her  community  interest  or 
estate  in  the  community  property,  and  as  such  attorney 
in  fact,  to  sign  the  name  of  such  husband  or  wife  to 
any  deed,  conveyance,  mortgage,  lease  or  other  encum- 
brance, or  to  any  instrument  necessary  to  be  executed 
by  which  the  property  conveyed  or  transferred  shall 
be  released  from  any  claim  as  community  property. 
And  either  said  husband  or  said  wife  may  make  and 
execute  a  letter  of  attorney  to  any  third  person  to  join 
with  the  other  in  the  conveyance  of  any  interest  either 
in  separate  real  estate  of  either,  or  in  the  community 
estate  held  by  such  husband  or  wife  in  any  real  prop- 
erty. And  both  husband  and  wife  owning  community 
property  may  jointly  execute  a  power  of  attorney  to 
a  third  person  authorizing  the  sale,  encumbrance,  or 
other  disposition  of  community  real  property,  and  so 
execute  the  necessary  conveyance  or  transfer  of  said 
real  estate.  [8769.] 

§  472.    THE  MORTGAGE. 

A  mortgage  is  an  instrument  whereby  one  secures  the 
payment  of  money  on  any  lawful  agreement  or  condition. 
Mortgages  of  land  may  be  in  the  following  form,  substan- 
tially: 

The  mortgagor  [here  insert  name  or  names]  mort- 
gages to  [here  insert  name  or  names  of  mortgagee  or 


CONCERNING   DEEDS.  263 

mortgagees]  to  secure  the  payment  of  [here  recite  the 
nature  and  amount  of  indebtedness,  showing  when  due, 
rate  of  interest,  and  whether  secured  by  note  or  not], 
the  following  described  real  estate  [here  insert  descrip- 
tion] situated  in  the  county  of ,  state  of  Wash- 
ington. 

Dated  this day  of ,  19 


Every  such  mortgage,  when  otherwise  properly  exe- 
cuted, shall  be  deemed  and  held  a  good  and  sufficient 
conveyance  and  mortgage  to  secure  the  payment  of 
money  therein  specified.  The  parties  may  insert  in  such 
mortgage  any  lawful  agreement  or  condition.  [8750.] 

§  473.    THE  SATISFACTION  OP  MORTGAGES. 

When  the  amount  due  on  a  mortgage  is  paid,  the  same  is 
said  to  be  satisfied,  and  the  satisfaction  is  noted  on  the 
margin  of  the  mortgage  record,  or  by  an  instrument  in 
writing. 

Whenever  the  amount  due  on  any  mortgage  is  paid, 
the  mortgagee,  his  legal  representatives  or  assigns, 
shall,  at  the  request  of  any  person  interested  in  the 
property  mortgaged,  acknowledge  satisfaction  of  the 
same  on  the  margin  of  the  page  upon  which  the  mort- 
gage is  recorded  (which  marginal  satisfaction  shall  be 
at  the  time  attested  by  the  auditor  or  his  deputy), 
or  by  executing  an  instrument  in  writing  referring  to 
the  mortgage  by  the  volume  and  page  of  the  record,  or 
otherwise  sufficiently  describing  it  and  acknowledging 
satisfaction  in  full  thereof.  Said  instrument  shall  be 
duly  acknowledged,  and  upon  request  shall  be  recorded 
in  the  county  wherein  the  mortgaged  property  is  situ- 
ated. Every  instrument  of  writing  heretofore  recorded 
and  purporting  to  be  a  satisfaction  of  mortgage,  which 
sufficiently  describes  the  mortgage  which  it  purports  to 
satisfy  so  that  the  same  may  be  readily  identified,  and 
which  has  been  duly  acknowledged  before  an  officer 
authorized  by  law  to  take  acknowledgments  or  oaths, 
is  hereby  declared  legal  and  valid,  and  a  certified  copy 
of  the  record  thereof  is  hereby  constituted  prima  facie 
evidence  of  such  satisfaction.  [8798.] 


264  JUSTICE   OP   THE   PEACE   GUIDE. 

§  474.     PENALTY  FOR  FAILING  TO  SATISFY  MORT- 
GAGE. 

If  the  mortgagee  shall  fail  so  to  do  after  sixty  days 
from  the  date  of  such  request  or  demand,  he  shall  for- 
feit and  pay  to  the  mortgagor  the  sum  of  twenty-five 
dollars,  to  be  recovered  in  any  court  having  competent 
jurisdiction,  and  said  court,  when  convinced  that  said 
mortgage  has  been  fully  satisfied,  shall  issue  an  order 
in  writing,  directing  the  auditor  to  cancel  said  mort- 
gage, and  the  auditor  shall  immediately  record  the 
order  and  cancel  the  mortgage  as  directed  by  the  court, 
upon  the  margin  of  the  page  upon  which  the  mortgage 
is  recorded,  making  reference  thereupon  to  the  order 
of  the  court  and  to  the  page  where  the  order  is  re- 
corded. [8799.] 


CONCERNING  LEASES.  265 


CHAPTER  V. 
CONCERNING  LEASES. 

f  475.  Tte  monthly  tenant. 

5  476.  Tenant  by  sufferance, 

i  477.  Tenancy  at  specified  time. 

5  478.  Year  to  year  tenancy. 

§  475.    THE  MONTHLY  TENANT. 

When  premises  are  rented  for  an  indefinite  time,  with 
monthly  or  other  periodic  rent  reserved,  such  tenancy 
shall  be  construed  to  be  a  tenancy  from  month  to  month, 
or  from  period  to  period  on  which  rent  is  payable,  and 
shall  be  terminated  by  written  notice  of  thirty  days  or 
more,  preceding  the  end  of  any  of  said  months  or  peri- 
ods,  given  by  either  party  to  the  other.  [8803.] 

§  476.     TENANT  BY  SUFFERANCE. 

Whenever  any  person  obtains  possession  of  premises 
without  the  consent  of  the  owner  or  other  person  hav- 
ing the  right  to  give  said  possession,  he  shall  be  deemed 
a  tenant  by  sufferance  merely,  and  shall  be  liable  to 
pay  reasonable  rent  for  the  actual  time  he  occupied 
the  premises,  and  shall  forthwith  on  demand  surrender 
his  said  possession  to  the  owner  or  person  who  had  the 
right  of  possession  before  said  entry,  and  all  his  right 
to  possession  of  said  premises  shall  terminate  immedi- 
ately upon  said  demand.  [8805.] 

§  477.    TENANCY  AT  SPECIFIED  TIME. 

In  all  cases  where  premises  are  rented  for  a  specified 
time,  by  express  or  implied  contract,  the  tenancy  shall 
be  deemed  terminated  at  the  end  of  such  specified  time. 
[8804.] 

§  478.    YEAR  TO  YEAR  TENANCY. 

Tenancies  from  year  to  year  are  hereby  abolished, 
except  when  the  same  are  created  by  express  written 
contract.  Leases  may  be  in  writing  or  print,  or  partly 
in  writing  and  partly  in  print,  and  shall  be  legal  and 
valid  for  any  term  or  period  not  exceeding  one  year, 
without  acknowledgment,  witnesses,  or  seals.  [8802.] 


266  JUSTICE   OP  THE  PEACE  GUIDE. 


CHAPTER  VI. 

CHATTEL  MORTGAGES  OR  MORTGAGES  OP  PER 
SONAL  PROPERTY. 

§  479.  Personal  property  may  be  mortgaged. 

§  480.  Must  be  made  under  affidavit. 

§  481.  Mortgage  must  be  recorded. 

§  482.  A  mixed  mortgage  on  personal  and  real  property. 

§  483.  Unlawful  removal  of  mortgaged  property. 

§  479.    PERSONAL  PROPERTY  MAY  BE  MORTGAGED. 

Mortgages  may  be  made  upon  all  kinds  of  personal 
property,  and  upon  the  rolling  stock  of  a  railroad  com- 
pany, and  upon  all  kinds  of  machinery,  and  upon  boats 
and  vessels,  and  on  growing  crops,  and  on  portable  mills 
and  such  like  property.  [3659.] 

§  480.    MUST  BE  MADE  UNDER  AFFIDAVIT. 

A  mortgage  of  personal  property  is  void  against  cred- 
itors of  the  mortgagor  or  subsequent  purchasers,  and  en- 
cumbrancers of  the  property  for  value  and  in  good  faith, 
unless  it  is  accompanied  by  the  affidavit  of  the  mort- 
gagor that  it  is  made  in  good  faith,  and  without  any 
design  to  hinder,  delay  or  defraud  creditors,  and  it  is 
acknowledged  and  recorded  in  the  same  manner  as  is 
required  by  law  in  conveyance  of  real  property. 
[3660.] 

§  481.    MORTGAGE  MUST  BE  RECORDED. 

A  mortgage  of  personal  property  must  be  recorded 
in  the  office  of  the  county  auditor  of  the  county  in  which 
the  mortgaged  property  is  situated,  in  a  book  kept 
exclusively  for  that  purpose.  When  personal  property 
mortgaged  is  thereafter  removed  from  the  county  in 
which  it  is  situated,  it  is,  except  as  between  the  parties 
to  the  mortgage,  exempt  from  the  operation  thereof,  un- 
less either: 

1.  The  mortgagee  within  thirty  days  after  such  re- 
moval causes  the  mortgage  to  be  recorded  in  the  county 
to  which  the  property  has  been  removed;  or 

2.  The  mortgage  be  recorded  in  the  custom-house;  or 


MORTGAGES  OP  PERSONAL  PROPERTY.  267 

3.  The  mortgagee  within  thirty  days  after  such  re- 
moval take  possession  of  the  property:  Provided,  that 
a  mortgage  on  any  vessel  or  boat  or  part  of  a  vessel 
or  boat,  over  twenty  tons  burden,  shall  be  recorded  in 
the  office  of  the  collector  of  customs,  where  such  vessel 
is  registered,  enrolled,  or  licensed,  and  need  not  be 
recorded  elsewhere.  [3668.] 

§  482.    A  MIXED   MORTGAGE    ON    PERSONAL    AND 
REAL  PROPERTY. 

Any  mortgage  upon  property  of  a  mixed  character, 
consisting  in  part  of  real  estate  and  in  part  of  personal 
property,  and  particularly  upon  railroad  property,  in 
the  state  of  Washington,  shall  be  admitted  to  record 
and  be  recorded,  in  the  several  counties  wherein  the 
property  is  located,  as  a  real  estate  mortgage  when  ac- 
knowledged in  the  manner  provided  by  law;  and  the 
original  of  such  mortgage,  or  a  copy  thereof  certified 
-  by  the  auditor  of  any  county  in  the  state  of  Washing- 
ton, wherein  the  original  has  been  recorded,  may  be 
filed  in  a  file  to  be  kept  for  that  purpose  in  the  office 
of  the  auditor  of  the  county  wherein  such  property 
is  situated,  and  said  record  and  filing  shall  constitute 
notice  to  all  persons  of  the  existence  of  the  mortgage 
lien  provided  for  by  the  said  mortgage.  [8782.] 

§  483.  UNLAWFUL  REMOVAL  OF  MORTGAGED  PROP- 
ERTY. 

Any  mortgagor  of  personal  property,  or  the  successor 
in  interest  of  such  mortgagor,  who,  with  intent  to  hin- 
der, delay  or  defraud  the  mortgagee  thereof,  or  his  or 
her  assigns  or  legal  representatives,  shall  injure  or 
destroy  such  property  or  any  part  thereof,  or  shall 
conceal  such  property  or  any  part  thereof,  or  shall  re- 
move the  same  or  any  part  thereof  from  the  county 
where  it  was  situated  at  the  date  of  the  mortgage  before 
it  is  duly  released,  without  the  consent  in  writing  of 
the  mortgagee,  or  shall  sell  or  dispose  of  the  same,  or 
any  interest  therein,  where  he  parts  with  the  possession 
thereof,  without  the  consent  in  writing  of  the  mortga- 
gee, he  shall  be  deemed  guilty  of  a  misdemeanor,  and 
upon  conviction  thereof  shall  be  punished  by  imprison- 
ment in  the  county  jail  for  a  period  not  to  exceed  six 
months  or  by  a  fine  of  not  more  than  twice  the  value 
of  such  property,  or  by  both  such  fine  and  imprison- 
ment. [3669.] 


268  JUSTICE  OP   THE  PEACE  GUIDE. 


CHAPTER  VII. 
LABOR  AND  MATERIALMEN'S  LIEN. 

§  484.  Lien  for  improvements  on  real  property  when. 

§  485.  Form  of  claim,  filing,  etc. 

§  486.  What  the  claim  shall  state. 

§  487.  Form  of  claim. 

§  488.  Lien  right  is  assignable. 

§  489.  Action  on  lien  within  eight  months. 

§  490.  The  innkeeper's  lien. 

§  491.  Limitation  of  innkeeper's  responsibility. 

§  492.  The  agistor's  lien. 

§  493.  The  farm  laborer's  lien. 

§  494.  The  logger's  lien. 

§  495.  Lien  on  lumber  at  the  mill. 

§  496.  Lien  on  cut  timber. 

§  497.  Filing  claim  for  logger's  lien — Form. 

Every  person  performing  labor  upon  or  furnishing 
material  to  be  used  in  the  construction,  alteration  or 
repair  of  any  mining  claim,  building,  wharf,  bridge, 
ditch,  dyke,  flume,  tunnel,  fence,  machinery,  railroad, 
street  railway,  wagon  road,  aqueduct  to  create  hy- 
draulic power  or  any  other  structure,  or  who  performs 
labor  in  any  mine  or  mining  claim  or  stone  quarry, 
has  a  lien  upon  the  same  for  the  labor  performed  or 
materials  furnished  by  each,  respectively,  whether  per- 
formed or  furnished  at  the  instance  of  the  owner  of  the 
property  subject  to  the  lien,  or  his  agent;  and  every 
contractor,  subcontractor,  architect,  builder  or  person 
having  charge  of  the  construction,  alteration  or  repair 
of  any  property  subject  to  the  lien  as  aforesaid,  shall 
be  held  to  be  the  agent  of  the  owner  for  the  purposes 
of  the  establishment  of  the  lien  created  by  this  chapter: 
Provided,  that  whenever  any  railroad  company  shall 
contract  with  any  person  for  the  construction  of  its 
road,  or  any  part  thereof,  such  railroad  company  shall 
take  from  the  person  with  whom  such  contract  is  made 
a  good  and  sufficient  bond,  conditioned  that  such  per- 
son shall  pay  all  laborers,  mechanics  and  materialmen, 
and  persons  who  supply  such  contractors  with  provi- 
sions, all  just  dues  to  such  persons  or  to  any  person 
to  whom  any  part  of  such  work  is  given,  incurred  in 
carrying  on  such  work,  which  bond  shall  be  filed  by  such 


LABOB  AND   MATERIALMEN  's  LIEN.  269 

railroad  company  in  the  office  of  the  county  auditor 
in  each  county  in  which  any  part  of  such  work  is  situ- 
ated. And  if  any  such  railroad  company  shall  fail  to 
take  such  bond,  such  railroad  company  shall  be  liable  to 
the  persons  herein  mentioned  to  the  full  extent  of  all 
such  debts  so  contracted  by  such  contractor.  [1129.] 

§  484.    LIEN  FOR  IMPROVEMENTS  ON   REAL   PROP- 
ERTY WHEN. 

Any  person  who,  at  the  request  of  the  owner  of  any 
real  property,  his  agent,  contractor  or  subcontractor, 
clears,  grades,  fills  in  or  otherwise  improves  the  same, 
or  any  street  or  road  in  front  of,  or  adjoining  the  same, 
has  a  lien  upon  such  real  property  for  the  labor  per- 
forrred,  or  the  materials  furnished  for  such  purposes. 
[1131.] 

§  485.    FORM  OF  CLAIM,  FILING,  ETC. 

No  lien  created  by  this  chapter  shall  exist,  and  no  action 
to  enforce  the  same  shall  be  maintained,  unless  within 
ninety  days  from  the  date  of  the  cessation  of  the  perform- 
ance of  such  labor  or  of  the  furnishing  of  such  materials  a 
claim  for  such  lien  shall  be  filed  for  record  as  hereinafter 
provided  in  the  office  of  the  county  auditor  of  the  county  in 
which  the  property,  or  some  part  thereof  to  be  affected 
thereby,  is  situated. 

§  486.    WHAT  THE  CLAIM  SHALL  STATE. 

Such  claim  shall  state,  as  nearly  as  may  be,  the  time  of 
the  commencement  and  cessation  of  performing  the  labor  or 
furnishing  the  material,  the  name  of  the  person  who  per- 
formed the  labor  or  furnished  the  material,  the  name  of  the 
person  by  whom  the  laborer  was  employed  (if  known)  or 
to  whom  the  material  was  furnished,  a  description  of  the 
property  to  be  charged  with  the  lien  sufficient  for  identifica- 
tion, the  name  of  the  owner  or  reputed  owner  if  known,  and 
if  not  known,  that  fact  shall  be  mentioned,  the  amount  for 
which  the  lien  is  claimed,  and  shall  be  signed  by  the  claim- 
ant or  by  some  person  in  his  behalf,  and  be  verified  by  the 
oath  of  the  claimant,  or  some  person  in  his  behalf,  to  the 
effect  that  the  affiant  believes  the  claim  to  be  just.  In  case 


270  JUSTICE  OF   THE  PEACE   GUIDE. 

the  claim  shall  have  been  assigned,  the  name  of  the  assignee 
shall  be  stated,  and  such  claim  of  lien  may  be  amended,  in 
case  of  action  brought  to  foreclose  the  same,  by  order  of  the 
court,  as  pleadings  in  other  cases  may  be,  in  so  far  as  the  in- 
terests of  third  parties  shall  not  be  affected  by  such  amend- 
ment. 

§  487.    FORM  OF  CLAIM. 

A  claim  for  lien  substantially  in  the  following  form  shall 
be  sufficient: 


Claimant, 
v. 


Notice  is  hereby  given  that  on  the  ....  day  [date  of 
commencement  of  performing  labor  or  furnishing  ma- 
terial]   at  the  request  of commenced 

to  perform  labor  [or  to  furnish  material  to  be  used] 
upon  [here  describe  property  subject  to  the  lien]  of 

which  property  the  owner  or  reputed  owner,  is 

[or  if  the  owner  or  reputed  owner  is  not  known,  in- 
sert the  word  "unknown"]  the  performance  of  which 
labor  [or  the  furnishing  of  which  material]  ceased  on 

the day  of ;  that  said  labor  performed  [or 

material  furnished]  was  of  the  value  of dollars, 

for  which  labor  [or  material]  the  undersigned  claims 
a  lien  upon  the  property  herein  described,  for  the  sum 

of dollars.    [In  case  the  claim  has  been  assigned, 

add  the  words,  "and is  assignee  of  said  claim 

or  claims,"  if  several  are  united.] 


Claimant. 

State  of  Washington, 
County  of ,— ss. 

,  being  sworn,  says:  I  am  the  claimant  [or 

attorney  of  the  claimant]  above  named;  I  have  heard 
the  foregoing  claim  read  and  know  the  contents  thereof, 
and  believe  the  same  to  be  just. 


Subscribed  and  sworn  to  before  me  this day  of 


LABOB  AND   MATERIALMEN 'S  LIEN.  271 

Any  number  of  claimants  may  join  in  the  same  claim 
for  the  purpose  of  filing  the  same  and  enforcing  their 
liens,  but  in  such  case  the  amount  claimed  by  each 
original  lienor,  respectively,  shall  be  stated:  Provided, 
it  shall  not  be  necessary  to  insert  in  the  notice  of  claim 
of  lien  provided  for  by  this  chapter  any  itemized  state- 
ment or  bill  of  particulars  of  such  claim.  [1134.] 

§  488.    LIEN  RIGHT  IS  ASSIGNABLE. 

Any  lien  or  right  of  lien  created  by  law  and  the  rights 
of  action  to  recover  therefor  shall  be  assignable  so  as 
to  vest  in  the  assignee  all  rights  and  remedies  of  the 
assignor,  subject  to  all  defenses  that  might  be  made  if 
such  assignment  had  not  been  made.  [1136.] 

§  489.    ACTION  ON  LIEN  WITHIN  EIGHT  MONTHS. 

No  lien  created  by  this  chapter  binds  the  property 
'  subject  to  the  lien  for  a  longer  period  than  eight 
calendar  months  after  the  claim  has  been  filed  unless 
an  action  be  commenced  in  the  proper  court  within 
that  time  to  enforce  such  lien;  or,  if  credit  be  given, 
then  eight  calendar  months  after  the  expiration  of  such 
credit;  and  in  case  such  action  be  not  prosecuted  to 
judgment  within  two  years  after  the  commencement 
thereof,  the  court,  in  its  discretion,  may  dismiss  the 
same  for  want  of  prosecution,  and  the  dismissal  of  such 
action,  or  a  judgment  rendered  therein,  that  no  lien 
exists,  shall  constitute  a  cancellation  of  the  lien. 
[1138.] 

§  490.    THE  INNKEEPER'S  LIEN. 

Hereafter  all  hotel-keepers,  innkeepers,  lodging-house 
keepers,  and  boarding-house  keepers  in  this  state  shall 
have  a  lien  upon  the  baggage,  property,  or  other  valu- 
ables of  their  guests,  lodgers,  or  boarders  brought  into 
such  hotel,  inn,  lodging-house,  or  boarding-house  by 
such  guests,  lodgers,  or  boarders,  for  the  proper  charges 
due  from  such  guests,  lodgers,  or  boarders  for  their 
accommodation,  board,  or  lodging,  and  such  other  ex- 
tras as  are  furnished  at  their  request,  and  shall  have 
the  right  to  retain  in  their  possession  such  baggage, 
property,  or  other  valuables  until  such  charges  are 
fully  paid,  and  to  sell  such  baggage,  property,  or  other 
valuables  for  the  payment  of  such  charges  in  the  manner 


272  JUSTICE  OF   THE  PEACE  GUIDE. 

provided  in  the  next  succeeding  section  of  this  chapter. 
[1201.]     [See  Rem.  &  Bal.  Code,  for  procedure  of  sale.] 

§  491.    LIMITATION      OF      INNKEEPER'S      RESPON- 
SIBILITY. 

No  innkeeper  who  constantly  has  in  his  inn  an  iron 
safe  or  suitable  vault  in  good  order,  and  fit  for  the  safe 
custody  of  money,  bank  notes,  jewelry,  articles  of  gold 
and  silver  manufacture,  precious  stones  and  bullion, 
and  who  keeps  a  copy  of  this  section,  printed  by  itself 
in  large,  plain  Roman  type,  and  framed,  constantly  and 
conspicuously  suspended  in  the  office,  bar-room,  saloon, 
reading,  sitting,  and  parlor  room  of  his  inn,  and  also  a 
copy  printed  by  itself  in  ordinary  steed  plain  Roman 
type,  posted  upon  the  inside  of  the  entrance  door  of 
every  public  sleeping-room  of  his  inn,  shall  be  liable  for 
the  loss  of  any  such  article  suffered  by  any  guest,  unless 
such  guest  has  first  offered  to  deliver  such  property 
lost  by  him  to  such  innkeeper  for  custody  in  such  iron 
safe  or  vault,  and  such  innkeeper  has  refused  or  neg- 
lected to  receive  and  deposit  such  property  in  his  safe 
or  vault  and  to  give  such  guest  a  receipt  therefor :  Pro- 
vided, that  all  doors  to  rooms  furnished  to  guests  shall 
be  provided  with  slide-bolts  inside  of  such  rooms  on  all 
doors ;  otherwise  he  shall  be  liable ;  but  every  innkeeper 
shall  be  liable  for  any  loss  of  the  above-enumerated 
articles  by  a  guest  in  his  inn,  when  caused  by  the  theft 
or  negligence  of  the  innkeeper  or  any  of  his  servants. 
[1203.] 

§  492.    THE  AGISTOR'S  LIEN. 

Any  farmer,  ranchman,  herder  of  cattle,  tavern- 
keeper,  livery  and  boarding-stable  keeper  to  whom  any 
horses,  mules,  cattle,  or  sheep  shall  be  intrusted  for 
the  purpose  of  feeding,  herding,  pasturing,  training, 
caring  for,  or  ranching,  shall  have  a  lien  upon  said 
horses,  raules,  cattle,  or  sheep  for  the  amount  that  may 
be  due  for  such  feeding,  herding,  pasturing,  training, 
caring  for,  or  ranching,  and  shall  be  authorized  to 
retain  possession  of  such  horses,  mules,  cattle,  or  sheep 
until  the  said  amount  is  paid.  Provided,  that  these  pro- 
visions shall  not  be  construed  to  apply  to  stolen  stock. 
[1197.] 


LABOR  AND  MATERIALMEN  *S  LIEN.  273 

§  493.    THE  FARM  LABORER'S  LIEN. 

Any  person  who  shall  labor  upon  any  farm  or  land, 
in  tilHug  the  same  or  in  sowing  or  harvesting  or  thresh- 
ing any  grain,  as  laborer,  contractor,  or  otherwise,  or 
laboring  upon,  or  securing  or  assisting  in  securing  or 
housing  any  crop  or  crops  sown,  raised  or  threshed 
thereon  during  the  year  in  which  said  work  or  labor 
was  done,  such  person  shall  have  a  lien  upcn  all  such 
crops  as  shall  have  been  raised  upon  all  or  any  of  such 
land,  for  such  work  or  labor;  and  every  landlord  shall 
have  a  lien  upon  the  crops  grown  or  growing  upon  the 
demised  lands  of  any  year  for  the  rents  accrued  or 
accruing  for  such  year,  whether  the  same  is  paid  wholly 
or  in  part  in  money  or  specific  articles  of  property, 
or  products  of  the  premises,  or  labor,  and  also  for  the 
faithful  performance  of  the  lease;  and  the  lien  created 
by  the  provisions  of  this  section  shall  be  a  preferred 
lien,  and  shall  be  prior  to  all  other  liens.  [1188.] 

The  law  further  provides  that  these  liens  are  preferred 
liens  generally,  and  that  the  claim  must  be  filed  within  forty 
days  after  the  work  is  done,  or  at  the  expiration  of  the  term 
or  after  the  expiration  of  each  year  of  the  lease. 

§  494.    THE  LOGGER'S  LIEN. 

Every  person  performing  labor  upon  or  who  shall 
assist  in  obtaining  or  securing  sawlogs,  spars,  piles, 
cordwood,  shingle-bolts  or  other  timber,  and  the  owner 
or  owners  of  any  tugboat  or  towboat  which  shall  tow 
or  assist  in  towing,  from  one  place  to  another  within 
this  state,  any  sawlogs,  spars,  piles,  cordwood,  shingle- 
bolts  or  other  timber,  and  the  owner  or  owners  of  any 
logging  or  other  railroad  over  which  sawlogs,  spars, 
piles,  cordwood,  shingle-bolts,  or  other  timber  shall  be 
transported  and  delivered,  shall  have  a  lien  upon  the 
same  for  the  work  or  labor  done  upon,  or  in  obtaining 
or  securing,  or  for  the  services  rendered  in  towing, 
transporting  or  driving,  the  particular  sawlogs,  spars, 
cordwood,  shingle-bolts  or  other  timber  in  said  claim 
of  lien  described,  whether  such  work,  labor  or  services 
were  done,  rendered  or  performed  at  the  instance  of  the 
owner  of  the  same  or  his  agent.  The  cook  in  a  logging 
camp  shall  be  regarded  as  a  person  who  assists  in  ob- 
taining or  securing  the  timber  herein  mentioned. 
[1162.] 

18 


274  JUSTICE  OP   THE  PEACE  GUIDE. 

§  495.    LIEN  ON  LUMBER  AT  THE  MILL. 

Every  person  performing  work  or  labor  or  assisting 
in  manufacturing  sawlogs  and  other  timber  into  lumber 
and  shingles  has  a  lien  upon  such  lumber  while  the  same 
remains  at  the  mill  where  it  was  manufactured  or  in 
the  possession  or  under  the  control  of  the  manufacturer, 
whether  such  work  or  labor  was  done  at  the  instance  of 
the  owner  of  such  logs  or  his  agent  or  any  contractor 
or  subcontractor  of  such  owner.  The  term  "lumber," 
as  used  in  this  chapter,  shall  be  held  and  be  construed 
to  mean  all  logs  or  other  timber  sawed  or  split  for  use, 
including  beams,  joists,  planks,  boards,  shingles,  laths, 
staves,  hoops,  and  every  article  of  whatsoever  nature 
or  description  manufactured  from  sawlogs  or  other 
timber.  [1163.] 

§  496.    LIEN  ON  CUT  TIMBER. 

Any  person  who  shall  permit  another  to  go  upon  his 
timber  land  and  cut  thereon  sawlogs,  spars,  piles  or 
other  timber,  has  a  lien  upon  the  same  for  the  price 
agreed  to  be  paid  for  such  privilege,  or  for  the  price 
such  privilege  would  be  reasonably  worth  in  case  there 
was  no  express  agreement  fixing  the  price.  [1164.] 

§  497.    FILING  CLAIM  FOR  LOGGER'S  LIEN— FORM. 

Every  person  within  thirty  days  after  the  close  of 
the  rendition  of  the  services,  or  after  the  close  of  the 
work  or  labor  mentioned  in  the  preceding  sections, 
claiming  the  benefit  hereof,  must  file  for  record  with 
the  county  auditor  of  the  county  in  which  such  saw- 
logs,  spar  piles  and  other  timber  were  cut  or  in  which 
such  lumber  or  shingles  were  manufactured,  a  claim 
containing  a  statement  of  his  demand  and  the  amount 
thereof,  after  deducting  as  nearly  as  possible  all  just 
credits  and  offsets,  with  the  name  of  the  person  by 
whom  he  was  employed,  with  a  statement  of  the  terms 
and  conditions  of  his  contract,  if  any,  and  in  case 
there  is  no  express  contract,  the  claim  shall  state  what 
such  service,  work  or  labor  is  reasonably  worth;  and 
it  shall  also  contain  a  description  of  the  property  to  be 
charged  with  the  lien  sufficient  for  identification  with 


LABOR  AND  MATERIALMEN  *S  LIEN.  275 

reasonable  certainty,  which  claim  must  be  verified  by 
the  oath  of  himself  or  some  other  person  to  the  effect 
that  the  affiant  believes  the  same  to  be  true,  which  claim 
shall  be  substantially  in  the  following  form: — 


Claimant, 
v. 


Notice  is  hereby  given  that   of   

county,   state  of  Washington,   claims  a  lien  npon  a 

of ,  being  about in  quantity, 

which  were  cut  or  manufactured  in  county, 

state  of  Washington,  are  marked  thus ,  and  are 

now  lying  in ,  for  labor  performed  upon  and 

assistance  rendered  in said ;  that  the 

name  of  the  owner  or  reputed  owner  is ;  that 

employed  said to  perform  snch  labor 

and  render  such  assistance  upon  the  following  terms 
and  conditions,  to  wit : — 

The  said agreed  to  pay  the  said  

for  such  labor  and  assistance ;  that  said  con- 
tract has  been  faithfully  performed  and  fully  complied 

with  on  the  part  of  said ,  who  performed  labor 

upon  and  assisted  in  said  for  the 

period  of ;  that  said  labor  and  assistance  were 

so  performed  and  rendered  upon  said between 

the day  of and  the day  of ; 

and  the  rendition  of  said  service  was  closed  on  the 

day  of ;  and  thirty  days  have  not  elapsed  since 

that  time;  that  the  amount  of  claimant's  demand  for 

said  service  is ;  that  no  part  thereof  has  been 

paid  except ,  and  there  is  now  due  and  remain- 
ing unpaid  thereon,  after  deducting  all  just  credits  and 

offsets,  the  sum  of in  which  amount  he  claims 

a  lien  upon  said   The  said   also 

claims  a  lien  on  all  said  now  owned  by  said 

of  said  county  to  secure  payment  for  the  work 

and  labor  performed  in  obtaining  or  securing  the  said 
logs,  spars,  piles  or  other  timber,  lumber  or  shingles 
herein  described. 


276  JUSTICE  OF   THE  PEACE  GUIDE. 

State  of  Washington, 
County  of , — ss. 

being  first  duly  sworn,  on  oath  says  that 

he  is named  in  the  foregoing  claim,  has  heard 

the  same  read,  knows  the  contents  thereof,  and  believes 
the  same  to  be  true. 


Subscribed  and  sworn  to  before  me  this day  of 

[1168.] 


PRIVATE  CORPORATIONS.  277 


CHAPTER  VIII. 
PRIVATE  CORPORATIONS. 

§  498.  General  provision  for  forming. 

§  499.  Two  or  more  persons. 

§  500.  Written  articles. 

5  501.  File  one  of  such  articles. 

§  502.  Said  articles  shall  state. 

§  503.  This  limit  of  existence. 

§  504.  Amendments  may  be  made. 

§  505.  Form  of  corporation  acknowledgment; 

J  506.  Names  of  officers  to  be  filed. 

S  507.  Corporation  powers. 

§  498.    GENERAL  PROVISION  FOR  FORMING. 

Corporations  for  manufacturing,  mining,  milling, 
wharfing  and  docking,  mechanical,  banking,  mercantile, 
improvement  and  building  purposes,  or  for  the  building, 
equipping  and  managing  water  flumes  for  the  trans- 
portation of  wood  and  lumber,  or  for  the  purpose  of 
building,  equipping  and  running  railroads,  or  construct- 
ing canals  or  irrigation  canals,  or  engaging  in  any  other 
species  of  trade  or  business,  may  be  formed  according 
to  the  provisions  of  this  chapter ;  such  corporations  and 
the  members  thereof  being  subject  to  all  the  conditions 
and  liabilities  herein  imposed,  and  to  none  others:  Pro- 
vided, that  no  such  corporation  shall  commence  business 
or  institute  proceedings  to  condemn  land  for  corporate 
purposes  until  the  whole  amount  of  its  capital  stock  is 
subscribed:  And  provided  further,  that  the  provisions 
of  the  foregoing  proviso  shall  not  apply  to  corporations 
engaged  exclusively  in  raising  money  from,  and  loan- 
ing or  repaying  it  to,  their  own  members,  and  which 
confine  their  loaning  and  business  operations  wholly  to 
the  counties  of  their  principal  place  of  business  respec- 
tively, and  to  the  counties  adjacent  and  adjoining 
thereto.  [3677.] 

§  499.    TWO  OR  MORE  PERSONS. 

Any  two  or  more  persons,  who  may  desire  to  form  a 
company  for  one  or  more  of  the  purposes  specified  in 
the  preceding  section. 


278  JUSTICE  OP  THE  PEACE  GUIDE. 

§  500.    WRITTEN  ARTICLES. 

Shall  make  and  subscribe  written  articles  of  incorpo- 
ration in  triplicate  and 

§  601.    FILE  ONE  OF  SUCH  ARTICLES; 

In  the  office  of  the  secretary  of  state,  and  another  in 
the  office  of  the  county  auditor  of  the  county  in  which 
the  principal  place  of  business  of  the  company  is  in- 
tended to  be  located,  and  retain  the  third  in  the  posses- 
sion of  the  corporation. 

§  502.    SAID  ARTICLES  SHALL  STATE ; 

The  corporate  name  of  the  company,  the  objects  for 
which  the  same  shall  be  formed,  the  amount  of  its 
capital  stock,  the  time  of  its  existence,  not  to  exceed 
fifty  years:  Provided,  that 

§  503.    THIS  LIMIT  OF  EXISTENCE; 

Shall  not  apply  to  any  life,  accident  and  health  in- 
surance company  the  number  of  shares  of  which  the 
capital  stock  shall  consist,  the  number  of  trustees  and 
their  names,  who  shall  manage  the  concerns  of  the  com- 
pany for  such  length  of  time  (not  less  than  two  nor 
more  than  six  months)  as  may  be  designated  in  such 
certificate,  and  the  name  of  the  city,  town,  or  locality 
and  county  in  which  the  principal  place  of  business  of 
the  company  is  to  be  located. 

§  504.    AMENDMENTS  MAY  BE  MADE. 

To  the  articles  of  incorporation  by  a  majority  vote  of 
its  trustees  and  the  vote  or  written  assent  of  two-thirds 
of  the  capital  stock  of  such  corporation.  If  the  written 
assent  of  two-thirds  of  the  capital  stock  has  not  been 
obtained  then  the  vote  of  said  stock  may  be  taken  at  any 
regular  meeting  of  the  stockholders  or  at  any  special 
meeting  of  the  stockholders  called  for  that  purpose  in 
the  manner  provided  in  the  by-laws  of  such  corporation 
for  special  meetings  of  the  stockholders.  The  president 
and  secretary  of  said  corporation  shall  certify  said 
amendments  in  triplicate  under  the  seal  of  said  corpora- 
tion to  be  correct,  and  file  and  keep  the  same  as  in  the 
case  of  original  articles,  and  from  the  time  of  filing  said 
amendments  sucli  corporation  shall  have  the  same 
powers  and  it  and  the  stockholders  thereof  shall  be  sub- 


PRIVATE  CORPORATIONS.  279 

ject  to  the  same  liabilities  as  if  such  amendments  had 
been  embraced  in  the  original  articles  of  incorporation. 
Nothing  contained  in  this  section  shall  be  construed  to 
cure  or  amend  any  defect  existing  in  any  original  arti- 
cles of  incorporation  in  that  such  articles  did  not  set 
forth  the  matters  required  to  make  the  same  valid  at  the 
time  of  filing,  nor  cure  or  amend  any  defect  in  the  ex- 
ecution thereof.  The  time  of  existence  of  such  corpora- 
tion shall  not  be  extended  by  amendments  beyond  the 
time  fixed  in  the  original  articles  of  incorporation. 
[3679.] 

§  505.    FORM     OP     CORPORATION     ACKNOWLEDG- 
MENT. 

Certificates  of  acknowledgment  of  an  instrument  acknowl- 
edged by  a  corporation  substantially  in  the  following  form 
shall  be  sufficient: 

State  of , 

County  of , — ss. 

On  this day  of ,  A.  D.  19 ,  before 

me  personally  appeared  ,  to  me  known  to  be 

the  [president,  vice-president,  secretary,  treasurer,  or 
other  authorized  officer  or  agent,  as  the  case  may  be] 
of  the  corporation  that  executed  the  within  and  fore- 
going instrument,  and  acknowledged  the  said  instrument 
to  be  the  free  and  voluntary  act  and  deed  of  said  cor- 
poration, for  the  uses  and  purposes  therein  mentioned, 
and  on  oath  stated  that  he  was  authorized  to  execute 
said  instrument  and  that  the  seal  affixed  is  the  corporate 
seal  of  said  corporation. 

In  witness  whereof  I  have  hereunto  set  my  hand  and 
affixed  my  official  seal  the  day  and  year  first  above 
written. 

[Signature  and  title  of  officer.] 

§  506.    NAMES  OP  OFFICERS  TO  BE  FILED. 

Every  corporation  heretofore  organized  under  the 
laws  of  the  territory  or  state  of  Washington,  and  every 
corporation  which  may  hereafter  be  organized  under 
the  laws  of  this  state,  shall,  on  or  before  the  second 
Tuesday  of  January  of  each  year,  and  at  such  other  times 
as  such  corporations  may  elect  so  to  do,  file  with  the 
county  auditor  of  the  county  in  which  such  corporation 
has  its  principal  place  of  business,  a  statement,  sworn 


280  JUSTICE   OF   THE  PEACE   GUIDE. 

to  by  its  president  and  attested  by  its  secretary  and 
sealed  with  its  corporate  seal,  containing  a  list  of  all  its 
officers  and  their  respective  titles  of  office,  names  and 
addresses,  and  the  term  of  office  for  which  they  had 
been  chosen.  [3691.] 

§  507.     CORPORATION  POWERS. 

When  the  certificate  shall  have  been  filed,  the  persons  who 
shall  have  signed  and  acknowledged  the  same,  and  their 
successors,  shall  be  a  body  corporate  and  politic  in  fact  and 
in  name,  by  the  name  stated  in  their  certificate,  and  by  their 
corporate  name  have  succession  for  the  period  limited,  and 
shall  have  power : 

1.  To  sue  and  be  sued  in  any  court  having  competent  ju- 
risdiction. 

2.  To  make  and  use  a  common  seal  and  to  alter  the  same 
at  pleasure. 

3.  To  purchase,  hold,  mortgage,  sell  and  convey  real  and 
personal  property. 

4.  To  appoint  such  officers,  agents,  and  servants  as  the 
business  of  the  corporation  shall  require;  to  define  their 
powers,  prescribe  their  duties,  and  fix  their  compensation. 

5.  To  require  of  them  such  security  as  may  be  thought 
proper  for  the  fulfillment  of  their  duties,  and  to  remove 
them  at  will,  except  that  no  trustee  shall  be  removed  from 
office  unless  by  a  vote  of  two-thirds  of  the  stockholders  as 
hereinafter  provided. 

6.  To  make  by-laws  not  inconsistent  with  the  laws  of  the 
Congress  of  the  United  States  and  of  this  state. 

7.  The  management  of  its  property,  the  regulation  of  its 
affairs,  the  transfer  of  its  stock,  and  for  carrying  on  all 
kinds  of  business  within  the  objects  and  purposes  of  the 
company,  as  expressed  in  the  articles  of  incorporation. 


PARTNERSHIPS.  281 

CHAPTER  IX. 
PARTNERSHIPS. 

I  508.  Two  or  more  persons  may  form  partnership. 

§  509.  Limited  partnership. 

§  510.  Filing  of  partnership  certificate. 

§  511.  Partnership  certificate  to  be  published. 

§  512.  As  parties  to  actions. 

§  513.  Dissolution  of  partnership. 

§  508.    TWO  OR  MORE  PERSONS  MAY  FORM  PART- 
NERSHIP. 

Limited  partnership  for  the  transaction  of  mercantile, 

mechanical  or  manufacturing  business  may  be  formed 

within  this  state,  by  two  or  more  persons,  upon  the  terms 

and  subject  to  the  conditions  contained  in  this  act. 

'  [8359.] 

§  509.    LIMITED  PARTNERSHIP. 

A  limited  partnership  may  consist  of  two  or  more  per- 
sons, who  are  known  and  called  general  partners,  and 
are  jointly  and  severally  liable  as  general  partners  now 
are  by  law,  and  of  two  or  more  persons  who  shall  con- 
tribute to  the  common  stock  a  specific  sum  in  actual 
money  as  capital,  and  are  known  and  called  special  part- 
ners, and  are  not  personally  liable  for  any  debts  of  the 
partnership,  except  as  in  this  act  specially  provided. 
[8360.] 

§  510.    FILING  OF  PARTNERSHIP  CERTIFICATE. 

The  persons  forming  such  partnership  shall  make  and  sev- 
erally subscribe  a  certificate,  in  duplicate,  and  file  one  of 
such  certificates  with  the  county  auditor  of  the  county  in 
which  the  principal  place  of  business  of  the  partnership  is 
to  be.  Before  being  filed,  the  execution  of  such  certificate 
shall  be  acknowledged  by  each  partner  subscribing  it  before 
some  officer  authorized  to  take  acknowledgments  of  deeds, 
and  such  certificate  shall  contain: 

The  name  assumed  by  the  partnership  and  under  which 
its  business  is  to  be  conducted ; 

The  names  and  respective  places  of  residence  of  all  the 
general  and  special  partners; 


282  JUSTICE  OP  THE  PEACE  GUIDE. 

The  amount  of  capital  which  each  special  partner  has  con- 
tributed to  the  common  stock ; 

The  general  nature  of  the  business  to  be  transacted ;  and 
The  time  when  the  partnership  is  to  commence  and  when 
it  is  to  terminate. 

§  611.    PARTNERSHIP    CERTIFICATE    TO    BE    PUB- 
LISHED. 

Such  partnership  cannot  commence  before  the  filing 
of  the  certificate  of  partnership,  and  if  a  false  statement 
is  made  in  such  certificate,  all  the  persons  subscribing 
thereto  are  liable  as  general  partners  for  all  the  debts 
of  the  partnership.  The  partners  shall  for  four  con- 
secutive weeks  immediately  after  the  filing  of  the  cer- 
tificate of  partnership  publish  a  copy  of  the  same  in 
some  weekly  newspaper  published  in  the  county  where 
the  principal  place  of  business  of  the  partnership  is,  or 
if  no  such  paper  be  published  therein,  then  in  some  news- 
paper in  general  circulation  therein,  and  until  such  pub- 
lication is  made  and  completed,  the  partnership  is  to  be 
deemed  general.  [8361.] 

§  512.    AS  PARTIES  TO  ACTIONS. 

All  actions,  suits  or  proceedings  respecting  the  busi- 
ness of  such  partnership,  shall  be  prosecuted  by  and 
against  the  general  partners  only,  except  in  those  cases 
where  special  partners  or  partnerships  are  to  be  deemed 
general  partners,  or  partnership,  in  which  case  all  the 
partners  deemed  general  partners  may  join  therein;  and 
excepting  also  those  cases  where  special  partners  are 
severally  liable  on  account  of  sums  or  amounts  received 
or  withdrawn  from  the  capital  stock  as  provided  in  sec- 
tion [8366.] 

§  513.    DISSOLUTION  OF  PARTNERSHIP. 

No  dissolution  of  a  limited  partnership  shall  take 
place  except  by  operation  of  law,  before  the  time  speci- 
fied in  the  certificate  of  partnership,  unless  a  notice  of 
such  dissolution,  subscribed  by  the  general  and  special 
partners,  is  filed  with  the  original  certificate  of  partner- 
ship or  the  certificate,  if  any,  renewing  or  continuing 
such  partnership,  nor  unless  a  copy  of  such  notice  be 
published  for  the  time  and  in  the  manner  prescribed 
for  the  publication  of  the  certificate  of  partnership. 
[8367.] 


SALES  OF  UNCLAIMED  PROPERTY.  283 

CHAPTER  X. 
SALES  OP  UNCLAIMED  PROPERTY. 

f  514.  Notice  of  sale  of  unclaimed  property. 

i  515.  Affidavit  for  sale. 

§  516.  Order  of  sale. 

§  517.  How  sale  is  made. 

8  518.  The  constable's  return. 

S  519.  Proceeds  of  sale  disposed. 

§  520.  Sale  of  perishable  property. 

S  521.  Fees  for  justice  and  constable. 

§  522.  Finder  of  lost  property. 

The  law  provides  that  a  forwarding  merchant,  wharfinger, 
warehouse  or  tavern  keeper,  or  the  keeper  of  any  depot  for 
the  storage  of  trunks,  baggage  and  other  personal  property, 
shall  keep  a  record  of  such  property.  Upon  receipt  of  the 
same,  he  must  then  notify  the  consignee  that  he  has  such 
property  in  care  for  him,  and  thereafter,  if  the  consignee 
does  not  call  for  or  claim  the  same,  the  property  is  to  be 
held  for  the  period  of  one  year  and  then  sold  according  to 
the  following  procedure: 

§  514.    NOTICE  OF  SALE  OP  UNCLAIMED  PROPERTY. 

Before  any  such  property  shall  be  sold,  if  the  name 
and  residence  of  the  owner  thereof  be  known,  at  least 
sixty  days'  notice  of  such  sale  shall  be  given  him,  either 
personally  or  by  mail,  or  by  leaving  a  notice  at  his  resi- 
dence or  place  of  doing  business;  but  if  the  name  and 
residence  of  the  owner  be  not  known,  the  person  having 
the  possession  of  such  property  shall  cause  a  notice  to 
be  published,  containing  a  description  of  the  property, 
for  the  space  of  six  weeks  successively,  in  a  newspaper, 
if  there  be  one  published  in  the  same  county;  if  there 
be  no  newspaper  published  in  the  same  county,  then  said 
notice  shall  be  published  in  a  newspaper  nearest  thereto 
in  the  state;  the  last  publication  of  such  notice  shall  be 
at  least  eighteen  days  previous  to  the  time  of  sale. 
[7130.] 

After  sixty  days  the  holder  makes  affidavit  before  a  jus- 
tice of  the  peac*,  setting  forth  compliance  with  the  above 
statute. 


284t  JUSTICE  OF   THE  PEACE   GUIDE. 

§  515.    AFFIDAVIT  FOR  SALE. 

If  the  owner  or  person  entitled  to  such  property  shall 
not  take  the  same  away,  and  pay  the  charges  thereon, 
after  sixty  days'  notice  shall  have  been  given,  it  shall 
be  the  duty  of  the  person  having  possession  thereof,  his 
agent  or  attorney,  to  make  and  deliver  to  a  justice  of 
the  peace  of  the  same  county  an  affidavit,  setting  forth 
a  description  of  the  property  remaining  unclaimed,  the 
time  of  its  reception,  the  publi cation  of  the  notice,  and 
whether  the  owner  of  such  property  be  known  or  un- 
known. [7131.] 

Whereupon  the  justice  opens  the  package,  inventories  the 
contents,  and  orders  the  constable  to  sell  the  same. 

§  516.    ORDER  OF  SALE. 

Upon  the  delivery  to  him  of  such  affidavit,  the  justice 
shall  cause  such  property  to  be  opened  and  examined 
in  his  presence,  and  a  true  inventory  thereof  to  be  made, 
and  shall  annex  to  such  inventory  an  order,  under  his 
hand,  that  the  property  therein  described  be  sold  by 
any  constable  of  the  precinct  where  the  same  shall  be, 
at  public  auction.  [7132.] 

§  517.    HOW  SALE  IS  MADE. 

It  shall  be  the  duty  of  such  constable  receiving  such 
inventory  and  order  to  give  ten  days'  notice  of  sale,  by 
posting  up  written  notices  thereof  in  three  or  more 
places  in  such  precinct,  and  to  sell  such  property  at 
public  auction  to  the  highest  bidder,  in  the  same  man- 
ner as  provided  by  law  for  sales  under  execution  from 
justices'  court.  [7133.] 

§  518.    THE  CONSTABLE'S  RETURN. 

Upon  completing  the  sale,  the  constable  making  the 
same  shall  indorse  upon  the  order  aforesaid  a  return  of 
his  proceedings  thereon,  and  return  the  same  to  the  jus- 
tice, together  with  the  inventory  and  the  proceeds  of 
sale,  after  deducting  his  fees.  [7134.] 

§  519.    PROCEEDS  OF  SALE  DISPOSED. 

From  the  proceeds  of  such  sale,  the  justice  shall  pay 
all  legal  charges  that  have  been  incurred  in  relation  to 
such  property,  or  a  ratable  proportion  of  each  charge, 
if  the  proceeds  of  said  sale  shall  not  be  sufficient  to  pay 


SALES  OP  UNCLAIMED  PROPERTY.  285 

all  the  charges ;  and  the  balance,  if  any  there  be,  he  shall 
immediately  pay  over  to  the  treasurer  of  the  county  in 
which  the  same  shall  be  sold,  and  deliver  a  statement 
therewith,  containing  a  description  of  the  property  sold, 
the  gross  amount  of  such  sale,  and  the  amount  of  costs, 
charges,  and  expenses  paid  to  each  person.  [7135.] 

Perishable  property  may  be  kept  thirty  days  and  may  be 
sold  by  giving  ten  days'  notice.  Decayed  or  decaying  prop- 
erty may  be  summarily  sold  on  the  justice's  order. 

§  520.    SALE  OF  PERISHABLE  PROPERTY. 

Property  of  a  perishable  kind,  and  subject  to  decay 
by  keeping,  consigned  or  left  in  manner  before  men- 
tioned, if  not  taken  away  within  thirty  days  after  it 
shall  have  been  left,  may  be  sold  by  giving  ten  days' 
notice  thereof,  the  sale  to  be  conducted  and  the  proceeds 
of  the  same  to  be  applied  in  the  manner  before  provided 
in  this  title;  provided,  that  any  property  in  a  state  of 
decay,  or  that  is  manifestly  liable  immediately  to  be- 
come decayed,  may  be  summarily  sold  by  order  of  a  jus- 
tice of  the  peace,  after  inspection  thereof,  as  provided 
in  section  7132,  Rem.  &  Bal.  [7139.] 

§  521.    FEES  FOR  JUSTICE  AND  CONSTABLE. 

The  fees  allowed  to  any  justice  of  the  peace,  under  the 
provisions  of  this  title,  shall  be  three  dollars  for  each 
day's  service;  and  to  any  constable,  the  same  fees  as 
are  allowed  by  law  for  sales  upon  an  execution,  and  ten 
cents  a  folio  for  making  an  inventory  of  property. 
[7140.] 

§  522.    FINDER  OF  LOST  PROPERTY. 

Every  finder  of  lost  goods  of  the  value  of  ten  dollars 
or  more  shall,  in  addition  to  the  requirements  of  the  pre- 
ceding section,  within  fifteen  days  after  finding  the 
same,  cause  notice  thereof  to  be  published  in  a  news- 
paper printed  in  the  county,  if  there  be  one  published 
therein,  and  if  there  be  none,  then  such  notice  shall  be 
posted  up  in  three  of  the  most  public  places  in  the 
county;  and  if  no  person  shall  appear  to  claim  the  same, 
who  may  be  entitled  thereto,  he  shall,  within  two  months 
after  finding  such  goods,  and  before  using  the  same  to 
their  injury,  procure  an  appraisal  thereof  by  a  justice 


286  JUSTICE  OP  THE  PEACE  GUIDE. 

of  the  peace  of  his  county,  which  appraisal  shall  be  cer- 
tified to  by  such  justice,  and  filed  in  the  office  of  the 
clerk  of  the  board  of  county  commissioners  of  such 
county.  [7142.] 

The  owner  may  recover  the  same  within  one  year,  by 
paying  all  the  costs  and  charges  and  compensating  the 
finder  for  his  trouble.  [7143.] 


ABATEMENT  OP  NUISANCES.  287 


CHAPTER  XL 
ABATEMENT  OF  NUISANCES. 

I  523.  Public  nuisance. 

I  524.  Any  person  may  abate. 

S  525.  Action  by  private  person. 

§  526.  Definition  of  nuisance. 

527.  Statutory  nuisances. 

528.  Resorts  declared  to  be  nuisances. 

529.  Order  of  abatement  and  warrant. 

530.  Bond  for  staying  warrant. 

531.  Execution  of  warrant. 

§  523.    PUBLIC  NUISANCE. 

A  public  nuisance  is  one  which  affects  equally  the 
'rights  of  an  entire  community  or  neighborhood,  al- 
though the  extent  of  the  damage  may  be  unequal 
[8307.] 

When  such  a  nuisance  exists,  it  may  be  abated  by  the  ac- 
tion of  a  public  body  or  officer  with  proper  authority.  The 
action  is  brought  in  the  name  of  the  community  and  may  be 
by  the  indictment  of  a  grand  jury  or  upon  information. 

A  public  nuisance  may  be  abated  by  any  public  body 
or  officer  authorized  thereto  by  law.  [8317.] 

When  the  public  nuisance  especially  injures  any  one  in- 
dividual, the  person  so  suffering  may  remove  and  even  de- 
stroy the  offending  nuisance,  provided  that  in  so  doing  he 
does  not  break  the  peace.  When  he  cannot  peaceably  abate 
the  nuisance,  he  should  make  his  complaint  to  the  proper  au- 
thority and  allow  the  same  to  be  abated  by  process  of  law 
as  provided. 

§  524.    ANY  PERSON  MAY  ABATE. 

Any  person  may  abate  a  public  nuisance  which  is  spe- 
cially injurious  to  him,  by  removing,  or  if  necessary  de- 
stroying, the  thing  which  constitutes  the  same,  without 
committing  a  breach  of  the  peace  or  doing  unnecessary 
injury.  [8318.] 


288  JUSTICE  OF  THE  PEACE  GUIDE. 

On  the  other  hand,  he  may  maintain  an  action  to  abate  a 
public  nuisance  where  he  is  specially  injured. 

§  525.    ACTION  BY  PRIVATE  PERSON. 

A  private  person  may  maintain  a  civil  action  for  a 
public  nuisance,  i*  it  is  specially  injurious  to  himself, 
but  not  otherwise.  [8316.] 

§  526.    DEFINITION  OF  NUISANCE. 

Nuisance  consists  in  unlawfully  doing  an  act,  or  omit- 
ting to  perform  a  duty,  which  act  or  omission  either  an- 
noys, injures  or  endangers  the  comfort,  repose,  health 
or  safety  of  others,  offends  decency,  or  unlawfully  in- 
terferes with,  obstructs  or  tends  to  obstruct,  or  render 
dangerous  for  passage,  any  lake  or  navigable  river,  bay, 
stream,  canal,  or  basin,  or  any  public  park,  square, 
street  or  highway;  or  in  any  way  renders  other  persons 
insecure  in  life,  or  in  the  use  of  property.  [8309.] 

The  following  are  set  forth  by  the  statute  to  be  nuisances : 

§  527.    STATUTORY  NUISANCES. 
It  is  a  public  nuisance, — 

1.  To  cause  or  suffer  the  carcass  of  any  animal  or  any 
offal,  filth  or  noisome  substance  to  be  collected,  depos- 
ited or  to  remain  in  any  place  to  the  prejudice  of  others; 

2.  To  throw  or  deposit  any  offal  or  other  offensive 
matter,  or  the  carcass  of  any  dead  animal,  in  any  water- 
course, stream,  lake,  pond,   spring,  well,  or  common 
sewer,  street  or  public  highway,  or  in  any  manner  to 
corrupt  or  render  unwholesome  or  impure  the  water  of 
any  such  spring,  stream,  pond,  lake  or  well,  to  the  in- 
jury or  prejudice  of  others; 

3.  To  obstruct  or  impede,  without  legal  authority,  the 
passage  of  any  river,  harbor,  or  collection  of  water; 

4.  To  obstruct  or  encroach  upon  public  highways,  pri- 
vate ways,  streets,  alleys,  commons,  landing-places,  and 
ways  to  burying  places; 

5.  To  carry  on  the  business  of  manufacturing  gun- 
powder, nitroglycerine  or  other  highly  explosive  sub- 
stance, or  mixing  or  grinding  the  materials  therefor,  in 


ABATEMENT  OF  NUISANCES.  289 

any  building  within  fifty  rods  of  any  valuable  building, 
erected  at  the  time  such  business  may  be  commenced ; 

6.  To  establish  powder  magazines  near  incorporated 
cities  or  towns,  at  a  point  different  from  that  appointed 
by  the  corporate  authorities  of  such  city  or  town;  or 
within  fifty  rods  of  any  occupied  dwelling-house; 

7.  To  erect,  continue,  or  use  any  building,  or  other 
place,  for  the  exercise  of  any  trade,  employment  or 
manufacture,  which,  by  occasioning  obnoxious  exhala- 
tions, offensive  smells  or  otherwise  is  offensive  or  dan- 
gerous to  the  health  of  individuals  or  of  the  public; 

8.  To  suffer  or  maintain  on  one's  own  premises,  or 
upon  the  premises  of  another,  or  to  permit  to  be  main- 
tained on  one's  own  premises,  any  place  where  wines, 
spirituous,  fermented,  malt  or  other  intoxicating  liquors 
are  kept  for  sale  or  disposal  to  the  public  in  contraven- 
,tion  of  law. 

And  every  person  who  has  the  care,  government,  man- 
agement or  control  of  any  building,  structure,  powder 
magazine,  or  any  other  place  mentioned  in  this  section 
shall,  for  the  purposes  of  this  section,  be  taken  and 
deemed  to  be  the  owner  or  agent  of  the  owner  or  owners 
of  such  building,  structure,  powder  magazine  or  other 
place,  and,  as  such,  may  be  proceeded  against  for  the 
erecting,  contriving,  causing,  continuing  or  maintaining 
such  nuisance.  [8308.] 

528.    RESORTS  DECLARED  TO  BE  NUISANCES. 

Houses  of  ill-fame,  kept  for  the  purpose,  in  which  are 
embraced  all  squaw  dance-houses,  or  squaw  brothels, 
otherwise  called  mad-houses;  all  houses,  rooms,  saloons, 
booths,  scows,  boats,  or  other  structures  used  as  a  place 
of  resort,  where  women  are  employed  to  draw  custom, 
dance,  or  fcr  purposes  of  prostitution;  all  public  houses 
or  places  of  resort  where  gambling  is  carried  on  or  per- 
mitted; all  houses  or  places  within  any  city,  town,  or 
village,  or  upon  any  public  road  or  highway,  where 
drunkenness,  gambling,  fighting,  or  breaches  of  the 
peace  are  carried  on  or  permitted;  all  opium  dens  or 
houses,  or  places  of  resort  where  opium  smoking  is  per- 
mitted, are  nuisances,  and  may  be  abated,  and  the 
owners,  keepers,  or  persons  in  charge  thereof,  and  per- 

19 


290  JUSTICE  OP  THE  PEACE  GUIDE. 

sons  carrying  on  such  unlawful  business,  shall  be  pun- 
ished  as  provided  in  this  chapter.    [8319.] 

§  529.    ORDER  OF  ABATEMENT  AND  WARRANT. 

When,  upon  indictment  (or  information),  complaint 
or  action,  any  person  is  adjudged  guilty  of  a  nuisance, 
the  court  before  whom  such  conviction  is  had  may,  in 
addition  to  the  fine  imposed,  if  any,  or  to  the  judgment 
for  damages  or  costs,  for  which  a  separate  execution 
may  issue,  order  that  such  nuisance  be  abated  or  re- 
moved, at  the  expense  of  the  defendant,  and  after  in- 
quiry into  and  estimating,  as  nearly  as  may  be,  the  sum 
necessary  to  defray  the  expenses  of  such  abatement,  the 
court  may  issue  a  warrant  therefor.  When  the  convic- 
tion is  had  upon  an  action  before  a  justice  of  the  peace, 
and  no  appeal  is  taken,  the  justice,  after  estimating,  as 
aforesaid,  the  sum  necessary  to  defray  the  expenses  of 
removing  or  abating  the  nuisance,  may  issue  a  like  war- 
rant. [8321.] 

A  bond  that  the  defendant  will  discontinue  the  nuisance 
will  operate  to  stay  the  execution  of  the  warrant. 

§  530.    BOND  FOR  STAYING  WARRANT. 

Instead  of  issuing  such  warrant,  the  court  or  justice 
may  order  the  same  to  be  stayed  upon  motion  of  the 
defendant,  and  upon  his  entering  into  a  bond  in  such 
sum  and  with  such  surety  as  the  court  may  direct  to  the 
state,  conditioned  either  that  the  defendant  will  discon- 
tinue said  nuisance,  or  that  within  a  time  limited  by 
the  court,  and  not  exceeding  six  months,  he  will  cause 
the  same  to  be  abated  and  removed,  as  either  is  directed 
by  the  court,  and  upon  his  default  to  perform  the  con- 
dition of  his  bond,  the  same  shall  be  forfeited,  and  the 
court,  or  justice  of  the  peace,  as  the  case  may  be,  upon 
being  satisfied  of  such  default,  may  order  such  warrant 
forthwith  to  issue,  and  a  rule  to  show  cause  why  judg- 
ment should  not  be  entered  against  the  sureties  of  said 
bond.  [8322.] 

The  fences,  materials  and  buildings  of  obstructions  may 
be  sold  on  the  process  of  the  warrant,  just  as  an  execution 
of  a  judgment;  any  balance  that  may  be  left  over  being 
returned  to  the  defendant. 


ABATEMENT  OP  NUISANCES.  291 

§  531.    EXECUTION  OF  WARRANT. 

The  expense  of  abating  a  nuisance  by  virtue  of  a  war- 
rant can  be  collected  by  the  officer  in  the  same  manner 
as  damages  and  costs  are  collected  on  execution,  except 
that  the  materials  of  any  buildings,  fences,  or  other 
things  that  may  be  removed  as  a  nuisance  may  be  first 
levied  upon  and  sold  by  the  officer,  and  if  any  of  the 
proceeds  remain  after  satisfying  the  expense  of  the  re- 
moval, such  balance  must  be  paid  by  the  officer  to  the 
defendant  or  to  the  owner  of  the  property  levied  upon, 
and  if  said  proceeds  are  not  sufficient  to  pay  such  ex- 
penses, the  officer  must  collect  the  residue  thereof. 
[8323.] 


292  JUSTICE   OF   THE  PEACE  GUIDE. 


CHAPTER  XII. 
DOMESTIC  ANIMALS  AND  FISH  LAWS. 

§  532.  Damaged  party  may  retain  animals. 

§  533.  Notice  to  owner. 

§  534.  Notice  by  posting. 

§  535.  Action  for  damages. 

§  536.  Judgment  lien  on  animals. 

§  537.  Continuance  and  service  where  defendant  is  unknown. 

§  538.  Burplus  money  deposited  with  county  treasurer. 

§  639.  Justices  have  jurisdiction. 

§  540.  Jurisdiction  of  violations  of  fishing  laws. 

The  justice  of  the  peace  has  jurisdiction  of  all  damages 
made  by  the  depredations  of  domestic  animals  when  the 
amount  of  the  damage  so  done  does  not  exceed  one  hundred 
dollars  ($100).  He  has  also  authority  to  punish  violations 
of  the  state  fishery  laws.  He  has  power  to  abate  nuisances. 

§  532.    DAMAGED  PARTY  MAY  RETAIN  ANIMALS. 

A  person  suffering  damage  by  the  trespassing  of  another's 
domestic  animals  may  take  the  animals  and  keep  them  until 
his  damages  are  paid. 

Any  person  suffering  damage  done  by  horses,  mares, 
mules,  asses,  cattle,  goats,  sheep,  swine  or  any  such  ani- 
mals, which  shall  trespass  upon  any  cultivated  land,  in- 
closed by  lawful  fence,  may  retain  and  keep  in  custody 
such  offending  animals  until  the  owner  of  such  animals 
shall  pay  such  damage  and  costs,  or  until  good  and  suffi- 
cient security  be  given  for  the  same.  [3187.] 

The  person  so  retaining  cattle  must  give  the  owner  thereof 
written  notice  within  twenty-four  hours  of  his  action. 

§  633.    NOTICE  TO  OWNER. 

Whenever  any  animals  are  restrained  as  provided  in 
the  last  section,  the  person  restraining  such  animals 
shall  within  twenty-four  hours  thereafter  notify  in  writ- 
ing the  owner,  or  person  in  whose  custody  the  same  was 
at  the  time  the  trespass  was  committed,  of  the  seizure 


DOMESTIC   ANIMALS  AND  PISH  LAWS.  293 

of  such  animals,  and  the  probable  amount  of  the  dam- 
ages sustained:  Provided,  he  knows  to  whom  such  ani- 
mals belong.  [3188.] 

When  the  person  seizing  such  animals  does  not  know  the 
owner,  the  foregoing  notice  is  given  by  publication. 

§  534.    NOTICE  BY  POSTING. 

If  the  owner  or  the  person  having  charge  or  pos- 
session of  such  animals  is  unknown  to  the  person  sus- 
taining the  damage,  the  notice  provided  in  the  last  sec- 
tion shall  be  given  by  posting  three  notices,  in  three 
public  places  in  the  neighborhood  where  the  animals  are 
restrained,  for  ten  days.  [3189.] 

§  535.    ACTION  FOR  DAMAGES. 

If  the  owner  of  the  trespassing  cattle  does  not  settle  the 
damages,  the  injured  person  has  an  action  therefor. 

If  the  owner  or  person  having  such  animals  in  charge 
fails  or  refuses  to  pay  the  damages  done  by  such  ani- 
mals, or  give  satisfactory  security  for  the  same  within 
twenty-four  hours  from  the  time  the  notice  was  served, 
if  served  personally,  and  within  ten  days  from  the  date 
of  posting  of  the  notice  as  provided  in  the  last  section, 
the  person  damaged  may  commence  a  suit,  before  any 
court  having  jurisdiction  thereof,  against  the  owner  of 
such  animals,  or  against  the  persons  having  the  same  in 
charge,  or  possession,  when  the  trespass  was  committed, 
if  known;  and  if  unknown,  the  defendant  shall  be  desig- 
nated as  John  Doe,  and  the  proceedings  shall  be  the 
same  in  all  respects  as  in  other  civil  actions,  except  as 
herein  modified.  [3190.] 

The  judgment  secured  on  the  trial  of  such  action  becomes 
a  lien  upon  the  animals  in  question. 

§  536.    JUDGMENT  LIEN  ON  ANIMALS. 

Upon  the  trial  of  an  action  as  herein  provided  the 
plaintiff  shall  prove  the  amount  of  damages  sustained 
and  the  amount  of  expenses  incurred  for  keeping  the 
offending  animals,  and  any  judgment  rendered  for  dam- 
ages, costs  and  expenses  against  the  defendant  shall  be 
a  lien  upon  such  animals  committing  the  damage,  and 
the  same  may  be  sold  and  the  proceeds  shall  be  applied 
in  full  satisfaction  of  the  judgment  as  in  other  cases  of 


294  JUSTICE  OP  THE  PEACE  GUIDE. 

'  sale  of  personal  property  on  execution ;  Provided,  that 
no  judgment  shall  be  continued  against  the  defendant 
for  any  deficiency  over  the  amount  realized  on  the  sale 
of  such  animals,  if  it  shall  appear  upon  the  trial  that 
no  damage  was  sustained,  or  that  a  tender  was  made 
and  paid  into  court  of  an  amount  equal  to  the  damage 
and  costs,  then  judgment  shall  be  rendered  against  the 
plaintiff  for  costs  of  suit  and  damage  sustained  by  de- 
fendant. [3191.] 

§537.  CONTINUANCE  AND  SERVICE  WHERE  DE- 
FENDANT IS  UNKNOWN. 

If  upon  the  trial  it  appears  that  the  defendant  is  not 

the  owner  or  person  in  charge  of  such  offending  animals, 

the  case  shall  be  continued,  and  proceedings  had  as  in 

the  next  section  provided,  if  the  proper  defendant  be 

;   unknown  to  plaintiff.     [3192.] 

If  the  owner  or  keeper  of  such  offending  animals  is 
unknown  to  plaintiff  at  the  commencement  of  the  action, 
or  if  on  the  trial  it  appears  that  the  defendant  is  not 
the  proper  party  defendant,  and  the  proper  party  is 
unknown,  service  of  the  summons  or  notice,  with  a  no- 
tice attached,  stating  the  object  of  the  action  and  giving 
a  description  of  the  animals  seized,  in  a  weekly  news- 
paper published  nearest  to  the  residence  of  the  plain- 
tiff, if  there  be  one  published  in  the  county;  and  if  not, 
by  posting  said  summons  or  notice  with  said  notice  at- 
tached in  three  public  places  in  the  county,  in  either 
case  not  less  than  ten  days  previous  to  the  day  of  trial. 
[3193.] 

§  §38.  SURPLUS  MONEY  DEPOSITED  WITH  COUNTY 
TREASURER. 

If,  when  such  animals  are  sold,  there  remains  a  surplus 
of  money,  over  the  amount  of  the  judgment  and  costs, 
it  shall  be  deposited  with  the  county  treasurer,  by  the 
officer  making  the  sale,  and  if  the  owner  of  such  animals 
,  does  not  appear  and  call  for  the  same,  within  six  months 
from  the  day  of  sale,  it  shall  be  paid  into  the  school 
fund,  for  the  use  of  the  public  schools  of  said  county. 
[3194.] 

§  639.    JUSTICES  HAVE  JURISDICTION. 

Justices  of  the  peace  shall  have  exclusive  jurisdiction 
of  all  actions  and  proceedings  under  this  act  when  the 


DOMESTIC  ANIMALS  AND  FISH  LAWS.  295 

damages  claimed  do  not  exceed  one  hundred  dollars: 
Provided,  however,  that  any  party  considering  himself 
aggrieved  shall  have  the  right  of  appeal  to  the  superior 
court  as  in  other  cases.  [3195.] 

§  540.    JURISDICTION  OF  VIOLATIONS  OP  FISHING 
LAWS. 

Justices  of  the  peace  shall  have  concurrent  jurisdic- 
tion with  the  superior  court  of  all  offenses  mentioned  in 
this  act.  [5201.] 

This  refers  to  various  statutes  prohibiting  the  use  of  ex- 
plosives for  fishing  purposes ;  restoring  young  salmon  to  the 
water;  nets,  seines  and  boats;  closed  season  for  sturgeon, 
etc.,  to  be  found  in  the  second  volume  of  Remington  &  Bal- 
linger's  Code,  Title  XXXV  and  Chapter  IV. 


INDEX. 

(297) 


INDEX. 


FAGS  8EO. 

Accessory. 

To  crime 174        303 

Acknowledgment. 

General  form  of 210        372 

Action. 

On  contract 2  2 

For  injuries  to  person  or  property 2  3 

On  bonds 2  4 

On  surety  bonds 2  5 

-     On  fraud 3  6 

Actions,  all 3  9 

How  commenced. 

By  summons 39  76 

By  complaint  and  notice 40  77 

Other  methods 38  75 

Dismissal  of 41  80 

Parties  to.    See  Parties. 

Acquittal 

Foreign 175        304 

In  other  county 175        305 

Administrators. 

As  parties  to  actions 14          32 

Adultery 175        306 

Agistor. 

Lien  of 272        492 

Allegations. 

Undenied  admitted  true 45          89 

(299) 


300  INDEX. 

PAGE  SEO. 

Ambiguity. 

In  pleadings 23  52 

Amendment. 

Of  pleadings,  generally 43  85 

To  be  filed 45  91 

Amusement. 

Dangerous 175  307 

Animals. 

Vicious 176  308 

Diseased 176  309 

Disposal  of  carcasses 176  310 

Injury  to 176  311 

Slaughtered,  to  be  recorded 236  421 

Trespass  by 292 

Damaged  party  may  retain 292  532 

Notice  to  owner '. 292  533 

Notice  by  posting 293  534 

Action  for  damages 293  535 

Judgment  is  a  lien  on 293  536 

Service  where  defendant  unknown 294  537 

Surplus  money 294  538 

Jurisdiction 294  539 

Answer. 

Of  defendant 44  86 

Appeal. 

Above  twenty  dollars 80  162 

How  taken 80  163 

Stays  proceedings 81  164 

Recalls  execution 82  165 

Transcript  on 82  166 

Superior  court  may  compel  transcript  on. ...  84  168 

Bond 81  164 

Bond,  defective,  how  cured 84  169 

Costs  of. .                                                            .  85  171 


INDEX.  301 

PAGE  SEC 

Appeal  (Continued). 

Judgment  against  sureties 84  170 

In  criminal  actions,  no  advance  fee  for 164  292 

Pleadings  same  as  in  lower  court 84  167 

Right  of  in  criminal  actions 161  290 

Record  of  appeal  in  criminal    action   to    be 

transcribed  to  superior  court 170  298 

Appearance. 

Special 7  18 

General 42  81 

Arrest  (Arrest  and  Bail). 

Warrant  of 103  200 

Affidavit  for 104  201 

Bond 104  202 

Of  defendant 105  203 

Plaintiff  notified  of 106  204 

Defendant  detained 106  205 

Discharge  of 106  206 

Appearance  of  defendant  in 106  206 

Arrest  (Criminal  Action). 

Warrant 148  274 

Arson. 

First  degree 177'  312 

Assignees. 

As  parties  to  actions 14  33 

Attached  Goods. 

Inventory  of Ill  217 

Attachment. 

Time  of 109  209 

Writ  of 118  233 

Bond  for  writ..                                                ..116  231 


302  INDEX. 

PAGE  SEC. 

Attachment  (Continued). 

Affidavit  for 115  23€ 

Executing  writ 119  234 

Executing  writs,  order  of 109  210 

Sale  of  property  on  (perishable) 110  211 

Improper  writ  of 110  212 

Return  of  writ  of 110  213 

Money  received  on 110  214 

Eeturn  of  writ  unsatisfied Ill  218 

For  deficiency  execution Ill  219 

Release  of 112  221 

Garnishment  of  attached  goods Ill  215 

Examination  of  defendant 113  222 

Funds  in  hands  of  court Ill  216 

In  other  county 113  225 

Inventory  of  goods  in Ill  217 

Motion  to  discharge 113  224 

Motion  to  discharge,  hearing  on 114  225 

Bond  to  discharge 114  226 

Execution  on  property  in 112  220 

Judgment  on  bond  to  discharge 115  227 

Suit  on  bond  in 115  228 

Statutes,  how  construed 115  229 

Additional  bond  for 117  232 

Jurisdiction  in 3  8 

Automobiles. 

Speed  of 178  313 


Bail. 

With  or  without  examination 150        276 

When  justice  has  no  jurisdiction  of  criminal 

offense 166        295 

Beggar. 

Is  vagrant 178        314 


INDEX.  303 

PAGE  SEC. 

Bond. 

Cost,  of  nonresident  plaintiff 52  111 

To  keep  the  peace 194  340 

Complaint  for  peace  bond 197  341 

Brand. 

On  animals 178  315 

Imitating  lawful 179  316 

Burglary ,...179  317 


Causes  of  Action. 

Statement  of 22          50 

Joinder  of 24          58 

Certificate. 

Of  election 223        393 

Chattel  Mortgages. 

Affidavit 266        480 

Recorded 266        481 

Child. 

Abandonment  of 180        318 

Children. 

Employment  of 181        320 

Clerk. 

Justice's 214        373 

Complaint. 

Contents  of 20  43 

Parts  of 21  47 

Title  of 21  48 

Parties  to..                                                         .  22  49 


304  INDEX. 

PAGE  SEC. 

Commitment. 

After  hearing 152  277 

Community  Property. 

Judgment  against 13  29 

Defined 256  462 

Compound  of  Misdemeanors 172  302 

Concert  Halls. 

Minors  in 181  319 

Constables. 

Bond 241  434 

Fees 242  436 

Unclaimed  property 239  427 

Sale  of 240  428 

Return  of  sale  of 240  429 

Oath 241  433 

Salary 240  432 

Election 240  430 

In  cities  of  five  thousand 240  431 

Duties  and  authority 238  426 

Successor,  incomplete  business  to 243  437 

Serve  process  of  military  courts 238  426 

Appointment  of 241  435 

Contempt  Proceedings. 

Persons  guilty 202  357 

Cause  to  be  heard 204  362 

Punishment 202  358 

Commitment  of  defendant 204  363 

Warrant 203  359 

Judgment 203  360 

In  presence  of  court 154  278 

Continuance. 

By  agreement 43  84 

In  criminal  actions . .                                       . .  156  284 


INDEX.  305 

PAOB  SEC. 

Contracts. 

To  be  in  writing,  when 246  439 

Conveyance. 

Offenses  in  public 181  321 

Coroner. 

Justice  as 211 

Corporations  as  Parties  to  Actions. 

Private 277  498 

Articles 278  500 

Filing 278  501 

Existence  of 278  503 

-    Form  of  corporate  acknowledgment 279  505 

Names  to  be  filed « 279  506 

Powers  of 280  507 

Costs. 

Recovery  of 77  155 

To  be  forwarded  up  in  criminal  action 171  300 

For  malicious  complaint 171  301 

Counterclaims. 

In  pleadings 47  98 

Criminal  Jurisdiction. 

Of  justices  of  the  peace 149  275 


Deeds. 

Warranty 259  466 

Quitclaim 260  468 

Bargain  and  sale 260  469 

Consideration 260  467 

20 


306  INDEX. 

PAGE  SBC. 

Default. 

Judgment  on 40  79 

Defendant. 

Answer  of 44  86 

Bight  to  counsel 182  322 

Presumption  of  innocence 182  322 

Right  to  face  witnesses 182  322 

Conviction,  when  had 182  322 

Demurrer,  The. 

Grounds  of 53  113 

Denial,  The 44  87 

Of  knowledge  or  information 44  88 

Allegations  undenied  admitted 45  89 

Depositions. 

Time  of  taking 67  138 

Out  of  state 67  139 

On  notice 67  140 

Use  of 68  141 

Notice  by  publication 69  142 

Written  and  certified 69  143 

Sealing  and  transmitting 70  144 

Use  on  trial 70  145 

In  criminal  action 170  297 

Descent. 

Of  property 251  448 

Desecration. 

Of  flag 183  323 

Docket. 

Justice's 214  374 

Duplicity. 

In  pleadings 23  59 


INDEX.  307 

»A«  SIC. 

Election  of  Justices. 

Precincts 221  385 

Number  of  justices 223  390 

Eligibility 223  391 

Term  of  office 223  392 

Certificate  and  oath 223  393 

Number  in  incorporated  cities 221  386 

Number  in  cities  of  more  than  five  thousand .  222  387 

Number  in  first  class  cities 222  388 

Number  in  cities  of  more  than  thirty-five 

thousand 222  389 

Must  be  lawyer,  when 222  388 

Bond,  liability  on 224  396 

New  precinct 224  395 

„    Jurisdiction 224  394 

Successor  in  office 224  397 

Penalty  for  failure  to  deliver  records 225  398 

Eligibility. 

Of  justices 223  391 

Must  be  lawyer,  when 222  388 

Evidentiary  Facts 23  55 

Examination, 

In  criminal  action 165  293 

Of  witnesses.     See  Witnesses. 
Direct.    See  Witnesses. 
Cross.    See  Witnesses. 
Redirect.    See  Witnesses. 

Execution. 

On  judgments 86 

Time  of,  limited 88  172 

Writ  of 89  '173 

Indorsement  on  writ  of 89  174 

Notice  of  sale  on  execution 90  175 

Return  of  sale  on . .                                           .91  176 


308  INDEX. 

PAQB  SEC. 

Execution  (Continued). 

Officer  cannot  purchase  on 91  177 

Claim  of  third  person 91  178 

Alias 92  179 

Stay  of 92  180 

Bond  for  stay  of 92  181 

Revocation  of 93  182 

Against  sureties 93  183 

Against  substituted  surety 94  184 

Mutual  judgments 94  185 

For  balance  of  unsatisfied  judgment 94  186 

Judgment  rendered  by  another  justice 95  187 

Issued  by  justice 's  successor 95  188 

Arrest  of  defendant  on 96  189 

For  costs 96  190 

General  remedy  on 96  191 

Garnishee  may  be  examined 96  192 

Of  judgment  in  criminal   action,  bond  for 

stay 161  289 

Exemptions. 

Statutory 96  193 

Pension  money 99  194 

Insurance  money  (fire) 99  195 

Insurance  money  (life) 99  196 

Cemetery  lota 99  197 

Procedure  on  claims. .                                    .  .100  199 


Family. 

Liability  for  expenses  of 12          28 

Farm  Laborers. 

Lien  of 273        493 

Fee-book. 

And  accounts. .  218        381 


INDEX.  309 


Fees. 

Accounting  for 218  381 

Schedule  of 215  375 

Of  salaried  justices 216  376 

To  be  paid  in  advance 217  378 

To  go  to  treasurer 220  384 

Felony. 

When  punishment  not  fixed 183        325 

Firearms 184       326 

Fire  Marshal 

Justice  as  deputy 213 

Fishing  Laws. 

Violation  of 295        640 

Forgery. 

First  degree 184        327 

Second  degree 185        327 


Gambling. 

Devices 186  328 

Conducting 185  328 

Swindling 186  328 

Garni  shee. 

Examination  of 96  192 

To  surrender  property 139  258 

Garnishment. 

Who  may  be  subject  to 129  245 

Affidavit  for  writ 130  246 

Writ  of 131  247 

Writ  to  be  indorsed 133  248 

Service  of  writ. .  ..133  249 


310  INDEX. 

PAGE  SEC. 

Garnishment  (Continued)'. 

Service  binding  on  garnishee 134  250 

Service  on  bank 134  251 

Answer  of  garnishee 135  252 

Answer  when  names  are  uncertain 136  253 

Answer  pleading  defense 137  254 

Answer  controverted 137  255 

Bond  of  defendant 138  256 

Discharge  of  garnishee  defendant 138  257 

Default  of  garnishee 139  259 

Judgment  against  garnishee 140  260 

Execution  against  garnishee 142  261 

Refusal  of  garnishee  to  deliver 142  262 

Costs  allowed  on  controverted  answer 142  263 

Of  corporation 143  264 

Conduct  of  sale  of  stock 143  265 

Sale  conveys  title 143  266 

Guilty. 

Plea  of..  ..154  279 


Hearing. 

Defendant  must  have 155  280 

Highways. 

Disturbances 186  329 

Throwing  glass  on 186  329 

Householder. 

Who  is 99  198 

Husband  and  Wife. 

As  necessary  parties  to  actions 11  23 

When  may  be  parties 11  24 

Antenuptial  debts 11  25 

On  promissory  note  of  husband 12  26 

General  rule. .                                                   ,  12  27 


INDEX.  311 

PAGE  SEC. 

Husband  and  Wife  (Continued). 

Separate  property  of  husband 256  460 

Separate  property  of  wife 256  461 

Husband  to  manage  real  property 257  463 

Conveyances  between 262  471 

Family,  expenses  of 12  2-8 


Infants. 

As  parties  to  action 13  30 

Guardian  for  plaintiff 13  30 

Guardian  for  defendant 13  31 

Innkeepers. 

,     Lien  of 271  490 

Responsibility  of 272  491 

Intervene. 

Eight  to 16  36 

Intoxicating  Liquors. 

In  public  conveyance 187  330 

Misrepresenting  age  of 187  330 


Judgment. 

On  verdict 74 

By  default 40  79 

Tender  of 77  156 

Lien  of 78  157 

Transcript  of 78  158 

Contents  of 78  159 

Entry  of 79  160 

Transferred  to  another  county 79  161 

Mutual  effect  of 94  185 

Execution  for  balance  of 94  186 

In  criminal  actions ..                                       ..160  2S8 


312  INDEX. 

PAGE  SXC. 

Judgment  (Continued). 

On  confession 3  7 

Of  dismissal 75  153 

Jurisdiction. 

Defined 2  1 

Of  civil  actions 2  1 

When  vested 4  11 

Extent  of 4  12 

Prohibited  specifically 5  14 

How  lost 6  16 

Effect  of  acting  without 6  15 

Criminal 147 

Want  of,  how  questioned 6  17 

Juror. 

Qualifications  of 55  116 

Service  on 57  120 

Failure  to  answer  summons 60  124 

Jury. 

Trial  by 55 

Exempt  from 55  115 

Demand  for 56  117 

Number  of 56  117 

Fees  of 56  117 

Selecting 56  118 

Summoning 57  119 

Oath  of 58  121 

Verdict  of 59  122 

Disagreement  of 60  123 

Challenging 60  125 

Argument  to 60  125 

Justices'  Election.    See  Election  of  Justices. 


INDEX.  313 

PAGE  SEC. 

Leases. 

Month  to  month' 265  475 

Tenant  by  sufferance 265  476 

Tenancy  at  specified  time 265  477 

Year  to  year  tenancy 265  478 

Lien. 

Of  judgment 78  157 

Labor  and  materialmen 268 

For  improving  real  property 269  484 

Form  of  claim 269  485 

Right  assignable 271  488 

Action  on  lien 271  489 

Innkeeper's  lien 271  490 

Agistor's  lien 272  492 

'     Farm  laborer's  lien 273  493 

Of  loggers 273  494 

On  lumber 274  495 

On  cut  timber 274  496 

Limitations. 

Statute  of 7  19 

Logger's  Lien. 

Filing  claim  for 274  497 

Lost  Property. 

Finder  of 285  522 

Unclaimed  property.    See  Unclaimed  Property. 


Malicious  Complaint. 

Liability  for 171  301 

Manslaughter 188  331 

Marriage 226 

Affidavit  for  license 227  401 

When  voidable..  ..232  413 


314'  INDEX. 

PAGE  SIC. 

Marriage  (Continued). 

Solemnize,  authority  to 226  399 

Officer  not  to  solemnize,  when 229  405 

Certificate 230  407 

Record  of  certificate 231  409 

Penalty  on  failing  to  deliver  certificate 231  410 

Consent  for  minors 227  401 

Prohibited  in  certain  cases 228  402 

Ceremony 229  406 

License  by  county  auditor 227  400 

Certain  marriages  declared  valid 231  411 

Solemnization  by  unauthorized  person 232  412 

Penalty  general 229  404 

Misdemeanor. 

Defined 188  322 

Misdemeanors,  Compound  of 172  302 

Mortgaged  Property. 

Removal  of 267  483 

Mortgages. 

Mixed 267  482 

Real  estate 262  472 

Chattel 266 

Satisfaction  of 263  473 

Penalty  for  failure  to  satisfy 264  474 

Murder. 

Proof  of  death 188  333 

First  degree 188  333 

Second  degree 189  334 

In  duel 189  334 

Ne  Exeat. 

Authority  in  general 144  267 

Bond  in 144  268 

Venue  in . .  . .  145  269 


INDEX.  315 

PACK  SEC. 

Ne Exeat  (Continued). 

Bond  of  defendant 145  270 

Writ  of 145  271 

Proceedings  in 146  272 

Habeas  corpus  writ,  remedy  of 146  273 

Notary  Public. 

Justice  as , 210  371 

Notice,  The.    See  Service,  etc. 

Certified,  must  be 35  70 

Nuisances. 

Abatement  of 287 

Public , 287  523 

Any  person  may  abate 287  524 

Action  by  private  person 288  525 

Defined 288  526 

Statutory  nuisances 288  527 

Resorts  as  nuisances 289  528 

Order  of  abatement 290  529 

Warrant 290  529 

Bond  for  staying  warrant 290  530 

Execution  of  warrant..                                  ..291  531 


Oath. 

Of  office 223        393 

Offense. 

In  presence  of  justice 154        278 

Office. 

Location  of  justice  of  the  peace 5         13 

Orchard. 

Injury  to 189        335 


316  INDEX. 

PAGE  SEC. 

Particulars. 

Bill  of 53  114 

Parties. 

To  action 9  20 

Who  may  be 10  21 

Defect  of 17  37 

Mistake  in  name 17  38 

Wrong  plaintiff 17  39 

Wrong  defendant 17  40 

Right  to  be  made 17  41 

Partner. 

Justice 's  law 5  13 

As  parties  to  actions 15  34 

Partnerships. 

Limited , 281  509 

Certificate 281  510 

Dissolution  of 282  513 

Peace. 

Crimes  against 189  336 

Disturbing  meeting 191  338 

Riot 189  336 

Unlawful  assembly 190  336 

Remaining  after  warning 190  336 

Peace  Bond. 

Complainant  pays  costs,  when 200  350 

Costs  to  defendant 200  351 

Offense  in  presence  of  court 200  352 

Penalty  remitted 201  353 

Transcript  to  superior  court 201  354 

Rights  of  surety  on  peace  bond 201  355 

Complaint  for 197  341 

Warrant 197  342 

Trial  on. . 198  343 


INDEX.  317 

PACK  SEC. 

Peace  Bond  (Continued). 

Imprisonment  in  default  of 198  344 

Appeal 199  346 

Discharge  on  bond 198  345 

Failure  to  prosecute  appeal 199  347 

Judgment  of  appellate  court 199  348 

Bond  certified  to  superior  court 199  349 

Personal  Property. 

Distribution  of 254  459 

Persons. 

Severally  liable  as  parties 16  35 

Pleadings. 

What  is  meant  by 19  42 

What  must  be  in  writing 20  42 

Orally 20  44 

For  money  only 21  45 

Time  of 26  61 

To  be  made  certain 21  46 

Verification  of 24  60 

Police  Judge. 

Establishment  of  police  court 205  364 

Jurisdiction  of  police  judge 205  365 

General  powers 207  366 

Police  powers  of  justice 207  367 

In  cities  of  third  class 208  368 

In  cities  of  fourth  class 208  369 

In  cities  of  first  class 209  370 

Powers. 

General,  of  justices  of  the  peace 3  10 

Prisoners. 

May  be  worked 233  414 

City.. 233  414 

County 233  415 


318  INDEX. 

PAGE  SXC. 

Private  Corporations 277 

Proof. 

Variance  between  pleading  and 45  92 

.Variance  between  pleading  and,  immaterial 

when 46  93 

Failure  of 46  95 

Practice  when  pleading  and  proof  vary 46  94 

Public  Peace. 

Crimes  against 189        336 

Publication, 

Service  by 30          66 

Weekly,  how  made 33          67 

Punishment. 

Adequacy  of 155        282 


Belief. 

Prayer  for 24  59 

Religious  Meeting. 

Disturbing 191  338 

Replevin. 

Affidavit  for 121  235 

Bond 122  235 

Order  for  delivery 122  236 

Counter-bond  of  defendant 124  238 

Justification  of  sureties 124  239 

Sureties  of  defendant .125  240 

Intervention  of  third  party 125  241 

Return  of  writ 126  244 

Execution  of  writ 123  237 

Officer  to  keep  and  deliver  chattels 126  243 

Right  to  enter  buildings 126  242 


INDEX.  319 

PACT  SEC. 

Reply. 

Plaintiff 's 49  101 

Bepugnancy. 

In  pleadings 23  54 


Sabbath-breaking 190  337 

Salaries. 

Of  justices 216 

Justices  pro  tern 217  379 

How  paid 217  380 

In  cities  of  more  than  five  thousand 219  382 

In  cities  of  more  than  thirty-five  thousand.  .219  383 

In  cities  of  more  than  eighty  thousand 220  383 

Salary  Fund 219  381 

Sale. 

Bills  of 245 

To  be  recorded 246  438 

Void,  when 248  441 

Seagulls. 

Punishment  for  taking  or  killing 237  424 

Search-warrant. 

Affidavit  for 172  302 

Service. 

Of  complaint  and  notice 29  63 

Time  of 30  64 

By  whom  made 30  65 

By  publication 30  66 

By  sheriff  or  other  officer 33  68 

Manner  of 33  69 

On  county  officer 33  69 


320  INDEX. 

PAGE  SEC. 

Service  (Continued)'. 

City  officer 33 

School  district 33 

Railroad  corporation 33 

Sleeping-car  corporation 33 

Insurance  company 33     f 

Express  company. 33 

Corporations  generally 33 

Foreign  corporations 33 

Minor  child 33 

Ward 33 

Receiver 33 

Generally 33 

Proof  of 36 

Return  of 35 

Rules  of  King  County  justices 38 

On  two  or  more  defendants 35 

Setoffs 47         97 

Generally 48          99 

Allowing 48        100 

Successor. 

In  office 224        397 

Swine. 

Damages  by 235 

Appraisers  appointed 235        419 

Fees  of  justice 236        420 

May  be  impounded 235        418 


Tender. 

Of  judgment  and  costs,  effect  of 77        156 

Term. 

Ofomce..  ..223        392 


INDEX.  321 

PAGB          810. 

Town. 

Action  in  favor  of  disqualifies  justice 237        425 

Transcript. 

On  appeal 82        166 

Superior  court  may  compel 84        168 

Trial 50 

By  jury  and  magistrate 155        281 

.When  justice  has  jurisdiction  of  criminal  of- 
fense  166        294 

Truant  Children. 

Jurisdiction  of 233        416 

Concurrent  jurisdiction  with  superior  courts  234        417 


Unclaimed  Property. 

Notice  of  sale  of 283  514 

Affidavit  for  sale 284  515 

Order  of  sale  of 284  516 

How  sale  is  made 284  517 

Constable 's  return  of  sale 284  518 

Proceeds  of  sale,  how  disposed 284  519 

Sale  of  perishable  property 285  520 

Fees  for  justice  and  constable 285  521 


Vagrancy 192  339 

Vendor. 

Affidavit  of,  if  goods  in  bulk 246  440 

Venue 50  102 

Of  action 50  103 

Change  of 51  104 

Same  as  in  superior  court 51  105 

21 


322  INDEX. 

PAGE  SEC. 

Venue  (Continued)'. 

One  change  of  only 51  106 

When  corporation  is  defendant 51  107 

In  other  cases 52  108 

Proceedings  to  change 52  109 

On  affidavit 52  110 

Verification, 

Of  pleadings 24  60 


Warrant. 

Of  arrest 148  274 

Wills. 

Two  witnesses 250  442 

When  witness  is  beneficiary 250  443 

Devise  of  land 250  444 

Testator's  name..  ..250  445 

Revocation  of  will 251  446 

Construction 251  447 

Witnesses. 

Deposition  of 66  137 

Who  may  be 61  126  " 

Persons  not  qualified  to  be 62  127  '- 

Who  may  refuse 62  128 

Husband 62  128 

Wife 62  128 

Attorney 62  128 

Clergyman ...62  128 

Physician 62  128 

Public  officer 62  128  " 

Jurisdiction  of  within  twenty  miles 63  129 

Service  on 63  130 

Adverse  party  competent  to  be 64  131 

Effect  of  party  refusing  to  be 64  132 

Principal  parties  as 65  13$ 


INDEX.  323 

PAGE  SEC. 

Witnesses  (Continued). 

Failure  to  appear 65  134 

Attachment  for 65  135 

Service  of  writ  of  attachment  for 66  136 

Examination  of,  direct 72  146 

Cross-examination  of 72  147 

Redirect  examination  of 72  148 

Questions,  leading 72  149 

Impeaching 73  150 

Memory  of,  refreshing 73  151 

Suit  against  on  bail  bond 171  299 

Objections  to  questions 73  152 

In  criminal  actions. 

Injured  party  as  witness 156  283 

Recognizance  of 156  285 

Sureties  for 158  286 

Sureties  for  not  sui  juris 160  287 

Recognized  for  appeal 164  291 


FORM  INDEX. 


PAGE  00. 

Acknowledgment. 

General 210  372 

By  corporation 279  505 

Affidavits. 

For  garnishment 130  246 

For  replevin 121  235 

Of  publication  of  summons 33  67 

For  publication  of  summons 31  66 

Appeal 

'     Bond  in  civil  action 82  164 

Bond  in  criminal  action 162  290 

Arrest. 

Warrant  of 148  274 

Arrest  and  Bail 

Bond 105  202 

Warrant  of 104  200 

Attachment. 

Writ  of 118  233 

Bond  for 117  231 

Bond  to  discharge 114  226 

Bail  bond 150  276 

Bench-warrant..                                                149  274 


Bill  of  Particulars. 

Demand  for 54        114 

Bond. 

Appeal  (civil) 82        164 

Appeal  (criminal) 162        290 

(325) 


326  FORM    INDEX. 

PAGE  SEC. 

Bond  (Continued). 

Replevin 122  235 

Of  justice ...223  393 

Attachment 117  231 

Stay  of  execution 93  181 

To  keep  peace. .-. 195  340 

Indemnity.... 85  171 

Arrest  and  bail 105  202 

To  discharge  attachment 114  226 


Certificate  of  Marriage 231  408 

Commitment 152  277 

When  no  jurisdiction  to  try 167  295 

Of  witness 157  285 

Temporary. 152  277 

Return  of... 153  277 

Complaint. 

General  form 25  60 

Contempt. 

Warrant  in 203  359 

Judgment  in 203  360 

Conviction. 

Certificate  of ..                                               ..155  280 


Deed. 

Warranty 259  466 

Quitclaim 260  468 

Bargain  and  sale 260  469 

Acknowledgment  of 261  470 

Deposition. 

Certificate  of . .  .69  143 


FORM    INDEX.  327 

PAGE  SEC. 

Execution. 

Against  the  body 87  172 

Notice  of  sale 90  175 

Writ  of 89  172 

Against  principal  and  surety 94  183 

Of  judgment  in  criminal  action 161  288 

Stay  of 93  181 

Bond  for  stay  of 93  181 

Garni shee  Defendant. 

Answer  of 135  252 

Judgment  of  default 140  259 

Garnishment. 

-     Affidavit  for 130  246 

After  judgment 130  246 

Writ  of..                                                           ..132  247 


Indemnity  Bond 85  171 

Judgment. 

For  plaintiff 76  154 

For  defendant 76  154 

On  counterclaim 76  154 

Of  dismissal 42  80 

Of  default... .41  79 

Of  default  of  garnishee 139  259 

Jury. 

Summons  for 57  119 

Justice  of  the  Peace. 

Bond 223  393 

Lien. 

Claim  of 270  487 

Of  logger 275  497 


328  FORM    INDEX. 

PAGE  SZC. 

Marriage  Ceremony. 

Form  of 230  406 

Certificate 231  408 

Notice. 

Form  of 40  77 

With  complaint 28  62 

Oaths. 

To  jurors  in  criminal  action 58  121 

To  bailiff  in  charge  of  jurors 58  121 

To  witness 71  146 

To  interpreter 72  146 

To  juror  at  challenge 58  121 

To  jurors  impaneled 58  121 

Peace. 

Bond  to  keep 195  340 

Warrant  for  breach 197  342 

Principal  and  Surety. 

Execution  against 94  183 

Publication. 

Of  summons 32  66 

Affidavit  for 31  66 

Affidavit  of  printer 33  67 

Replevin. 

Affidavit 121  235 

Return  of  writ 126  244 

Bond  of 122  235 

Writ  of 122  236 

Reply. 

Of  plaintiff 49  101 


FORM   INDEX.  329 

PAGE  SEC. 

Search-warrant 173  302 

Affidavit  for 172  302 

Service. 

Return  of  by  officer 36  73 

When  defendant  not  found 37  73 

Return  by  appointed  server 37  73 

On  corporation 38  73 

By  publication 31  66 

Affidavit  for 31  66 

Order  for 32  66 

Subpoena 64  130 

Subpoena  Duces  Tecum 64  130 

Summons 39  76 

For  publication 32  66 

Affidavit  of  publication 33  67 

Transcript. 

Of  judgment 83  166 

Certificate  of 84  166 

Of  criminal  record 170  298 

Vendor. 

Affidavit  of 247  440 

Verdicts. 

In  criminal  action 59  122 

In  civil  action. 

For  defendant 59  122 

For  plaintiff 59  122 

On  counterclaim 59  122 

For  plaintiff  with  damages 59  122 

For  defendant  in  replevin 59  122 

For  plaintiff  in  replevin 59  122 


330  FORM    INDEX. 

PACK  SEC. 

Verifications 26  60 

By  agent  or  attorney 26  60 


Warrant. 

For  breach  of  peace 197  342 

On  arrest  and  bail .'.104  200 

Criminal. 148  274 

Bench 149  274 

Witness. 

Commitment  of. 157  285 

Recognizance  of 158  286 


